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2010 (2) TMI 1156 - AT - Income TaxRectification u/s.154 - period of limitation - set off against the surplus - exemption u/s.10(23C)(vi) expenses - claimed the set off - unabsorbed expenses - HELD THAT:- Request for rectification was made by the assessee vide application as made beyond the prescribed time of four years. Undisputedly the stand of the assessee that it can be done and the order could be rectified in the light of the facts is a debatable point and, therefore, it is beyond the scope of section 154, as held by the Hon'ble Supreme Court and rightly relied by the assessee in the case of T. S. Balram, ITO v. Volkart Brothers [1971 (8) TMI 3 - SUPREME COURT]. On this ground appeal by the revenue is to be allowed and we quash the order of the CIT(A). The order of the AO stands. Since we have decided the preliminary issue in favour of the revenue, there is no need for us to decide the other points on merit. Appeals by the revenue for assessment years 2002- 03 to 2005-06 are allowed. Claim of depreciation on new assets - We respectfully following the decision of the Hon'ble Bombay High Court in the case of Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT], we hold that the CIT (A) was justified in allowing the assessee's claim of depreciation on new assets put into use during the accounting year, even if the entire cost of these assets have been claimed by the assessee and allowed as an application of the income for charitable purposes. This ground of the revenue is allowed. Carry forward of deficit of earlier years, this ground of the revenue is liable to be dismissed. In the other cases for the AY 2002-03 to 2005-06, we allowed the appeal of the revenue for the reason that the order was passed u/s.154 and the issue was beyond the scope of section 154. Coming to AY 2006-07, this ground by the revenue is to be dismissed because, merit we have held that though the point is to be decided in assessee's favour for earlier years, since it is a debatable point, it cannot be considered u/s.154, Whereas this order by the AO was u/s.143(3), therefore, this ground by the revenue for the year under consideration is liable to be dismissed. Donation received and profit on sale of shares directly taken to Corpus Fund - We are of the view that this ground by the revenue is to be dismissed. According to the revenue, CIT (A) erred in not considering the provisions of section 11(1)(d) which excludes only voluntary contributions made with a specific direction that the same should form part of the corpus fund of the trust. According to the revenue, further CIT (A) went wrong in holding that the donations are capital receipts but without giving a finding that these donations were received with a specific direction that they should form the corpus fund of the trust.This ground is dismissed.
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