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TMI Blog2012 (12) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... gion, caste or gender. For A.Y. 2007-08 the assessee declared nil income and annexed thereto Audited Balance-Sheet, income & expenditure account etc. The assessee has also filed Form 10B. 3. During the course of assessment proceedings the Assessing Officer noticed that the assessee earned income from sale of religious and educational books and magazines and while computing income thereon it claimed deduction towards depreciation etc. 4. In the opinion of the Assessing Officer depreciation is not allowable as deduction and hence amount was added to the income from other sources. It may be noticed that no reasons were given by the Assessing Officer for coming to such a conclusion. 5. Initially the assessee declared accumulated income u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,07 crores was claimed as deduction alongwith other expenditure incurred on printing etc. It was also submitted that in respect of depreciation provided on other assets the assessee did not claim to be an application of income nor does it claim it to be a deduction from the income in any manner. It was also contended that during the course of assessment proceedings assessee filed revised Form No. 10 declaring Rs. 2,80,00,000/- as accumulation u/s. 11(2) of the Act which was not taken into consideration by the Assessing Officer. Case of the assessee is that the decision of Hon'ble Apex Court in the case of Goetze India Ltd. Vs. CIT (284 ITR 323) is not applicable to the facts of the case since it speaks of claim of deduction towards ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amounts to application of income. Since depreciation is not actual outgo but only a charge to the profits and gains of business to arrive at the correct taxable income it cannot be treated as application of income. As regards decision of Hon'ble Bombay High Court referred to by learned CIT(A) [264 ITR 110 (Bom)], learned CIT-DR contended that Hon'ble Jurisdictional High Court had not taken note of the principles laid down by Hon'ble Apex Court in the case of Escorts Ltd. Vs. UOI (199 ITR 43). Hon'ble Supreme Court observed that ordinarily double deduction is not permissible under the Act unless there is a specific mention in the Statute. By applying the said principle, claim of depreciation in the instant case would amount to double deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the assessee is not entitled to claim depreciation particularly because the assessee was not carrying on any business and it may not be printing and selling the books with a profit motive. With regard to the alternative claim the case of learned Departmental Representative is that the assessee seeks benefit u/s. 11(2) of the Act i.e. accumulation of higher income, without filing revised return which is not permissible in law. In this regard learned Departmental Representative adverted our attention u/s. 119(2)(b) of the Act to submit that in case of a genuine hardship the CBDT is empowered to admit a claim of deduction etc. belatedly. Such a power is not vested in any other authority under the Statute. Therefore statutory mandate can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This fact was not disputed by learned CIT(A) and no specific ground was raised by the revenue in the grounds of appeal filed before the Tribunal. Therefore assumption of learned Departmental Representative, that assessee has not followed the conditions prescribed in section 11, is not only contrary to law but on facts. At any rate, decision in the case of Goetze India (supra) is distinguishable on facts in as much as in the aforecited case Hon'ble Apex Court was dealing with the claim of deduction whereas the assessee herein did not make any fresh claim of deduction but merely gave notice of the compliance u/s. 11(2) of the Act i.e. with regard to enhancement of deposits. Reliance was placed upon the following decisions in support of his co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.8.2011) * DIT Vs. Vishwa Jagriti Mission (2012) TIOL-271 (Delhi HC) It was submitted that in all these cases decision of Supreme Court in the case of Escorts Ltd. was referred to and distinguished by holding that claim of depreciation would not amount to double deduction in the circumstances of the case. He thus strongly supported the order passed by learned CIT(A). 14. We have carefully considered the rival submissions and perused the record. As could be noticed from the detailed order passed by the learned CIT(A) as well as the decisions relied upon by the learned counsel for the assessee, the contentions raised by the learned CIT(Departmental Representative ) runs contrary to the decision of the Apex Court in the case of Nag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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