TMI Blog2013 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A) and restore the matter to the file of the Assessing Officer for fresh examination of the matter in relation to the issue in dispute. The Assessing Officer is accordingly directed to verify in respect of each asset on which depreciation is claimed, as to whether the value of such asset was in fact allowed under S.11, and if it was so allowed, the depreciation would not be allowed in respect of such asset. The Assessing Officer shall accordingly redecide the issue in accordance with law and after giving reasonable opportunity of hearing to the assessee. - ITA No.1588/Hyd/12 - - - Dated:- 8-2-2013 - Shri Chandra Poojari And Shri Saktijit Dey,JJ. For the Appellant : Shri M. H. Naik DR For the Respondent : None ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the plain meaning of section 10(23C)(vi) of the I.T. Act, 1961, wherever the aggregate gross receipts of educational institutions are over and above Rs.1.00 Crore. 7. The learned CIT(A) ought to have sustained the disallowance of depreciation made by the Assessing Officer basing on Apex Court order in the case of Escorts Ltd. Others Vs. Union of India (199 ITR 44). 8. The order of Learned. CIT(A) in directing to allow depreciation on assets is erroneous both on fats and in law, when the value/cost of the assets has been either written off in the first year itself or the same has been treated and also allowed as application of income in earlier years. 9. ....." 3. At the time of hearing, none appeared on behalf of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2009 in the cases of Vasavi Academy of Education, Hyderabad in ITA No.1133/Hyd/2006 for the assessment year 2003-04 and order dated 17.4.2009 in ITA No.1206/Hyd/2007 for the assessment year 2004-05, wherein it was held that if donations are received compulsorily for the admission of students, by whatever name it may be called, i.e. donation, building fund, auditorium fund, etc. over and above the prescribed fee, from the students, the assessee would not be entitled for exemption either under S.10(23C) or under S.11 of the Act. Further, we find that the Constitutional Bench of Apex Court in the case of T.M.A. Pai Foundations and others Vs. State of Karnataka Others (2002) 8 SCC 481 examined the issue of collection of capitation fees for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yderabad in ITA No.494/Hyd/2007 and 518/Hyd/2008 for the assessment years 2002- 2003 and 2004-05 and Sri Sai Sudhir Educational Society, Hyderabad in ITA No.999/Hyd/20-06 for the assessment year 2003-04. Therefore, we set aside the orders of the Revenue authorities and remit back the matter for both the years to the file of assessing officer with a direction to assessing officer that he shall reconsider the entire issue in the light of judgment of Supreme Court in the case of M/s Islamic Academy of Education Another Vs. State of Karnataka and Another (supra), and in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others (Supra), and find out whether the assessee has received any money over and above the fees prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held by the Delhi Bench of the Tribunal that merely because entire value of asset is allowable as expenditure under S.11, it is not sufficient to deny claim for depreciation unless the value of asset has been actually allowed as expenditure. If not so allowed in the year of acquisition, assessee will be entitled to depreciation. Further, it was held by the Cochin Bench of the Tribunal in the case of Dy. CIT V/s. Adi Sankara Trust (46 SOT 230) that where an assessee trust is claiming depreciation on assets where cost of the relevant assets stood claimed as an application of income for a preceding and/or the current year under S.11(1), its claim under S.32(1)is eligible only in respect of business assets and where entire cost of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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