9911796707
TMI Blog2014 (1) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 24,67,000/- even though the same is offered to taxation in the AY 2009-2010. 2. On the facts and in the circumstances of the case and in law, CIT (A) erred in not directing the AO to allow the claim of depreciation as application of income of Rs. 16,83,16,468/- in the impugned order. 3. On the facts and circumstances of the case and in law the Ld CIT (A) erred in not directing the AO to allow the claim of exemption u/s 10(34) of the Act of Rs. 10,42,71,151/- in the impugned order. 4. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in not directing the AO to allow the claim of adjusting the carry forward of excess application of income of the earlier years claimed in the computation of total income. 5. On the facts and circumstances of the case and in law the Ld CIT (A) erred in not directing the AO not to charging interest u/s 234D of the Act." 3. At the outset, Shri H.K. Panda, AR, Ld Counsel for the assessee mentioned that ground no.1 is not pressed. Therefore, the said ground no.1 is dismissed as not pressed. Later, bringing our attention to the 5 grounds raised by the assessee without prejudice, ld Counsel stated that the ground n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under:- "14. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute. In the present case the assessee is not claiming double deduction on account of depreciation as has been held by the Revenue Authorities. The income of the assessee being exempt, the assessee is only claiming that depreciation should be reduced from the income for determining the percentage of funds which have to be applied for the purpose of Trust. Thus there is no double deduction claimed by the assessee. Recently the Hon'ble Punjab & Haryana High Court in CIT vs. Market Committee, Pipli (2011) 330 ITR 16 (P&H) after distinguishing the decision of the Hon'ble Supreme Court in Escorts Ltd. vs. UOI (1993) 199 ITR 43 (SC) while relying on various decisions including the decision of Hon'ble jurisdictional High Court in Institute of Banking (supra) has held vide penultimate para 10 as under:- "In the present case, the assessee is not claiming double deduction on account of depreciation as has been suggested by learned counsel for the Revenue. The income of the assessee being exempt, the assessee is only claiming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground no.2 raised by the assessee is allowed. 9. Referring to ground no.3, which relates to exemption u/s 10(34) of Rs. 10,42,71,151/- Ld Counsel mentioned that the similar issue was adjudicated by the Tribunal vide in assessee's own case vide ITA No.1434/M/2010 (AY 2006-2007) dated 21.11.2012 wherein the Tribunal has decided the issue in favour of the assessee. In this regard, Ld Counsel bought our attention to para 12 to 17 of the said order of the Tribunal. 10. On the other hand, Ld DR relied on the orders of the Revenue Authorities. 11. We have heard both the parties and perused the orders of the Revenue Authorities as well as the order of the Tribunal (supra) dated 21.11.2012. On perusal of the said order of the Tribunal, we find that paras 16 and 17 are relevant in this regard and the same are reproduced here under. "16. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the ld. CIT(A) after considering the submission of the assessee and the order of the A.O. while distinguishing the decisions in CIT vs. Silk & Art Silk Mills Association Ltd. (1990) 182 ITR 38 (Bom) and His Holiness Silasri Kasiva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) dated 21.11.2012. On perusal of the said order of the Tribunal, we find that para 30 is relevant in this regard and the same is reproduced here under. "30. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that it has been held by the A.O. that the exemption u/s 11 in the earlier years was not claimed by the assessee and the returns are barred by limitation, therefore, the question of excess application does not arise. At the time of hearing the ld. Counsel for the assessee has placed on record the copy of the Tribunal order in ITA No. 2206 to 2208/M/2009 for A.Y. 2003-04 order dtd. 30- 9-2010 since reported in (2011) 48 SOT 129 (Mum)(Trib) (URO). On going through the same we find that the Tribunal (supra) has remitted the matter back to the file of the A.O. with a direction "to examine the matter, on merit, for eligibility to tax exemption as a result of the registration u/s 12AA now available to the assessee and in the light of the requisite audit report and other documents now filed by the assessee". Since the assessments for the earlier assessment years are still pending, therefore, we are of the view tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime as the assessment proceedings are completed in respect of any assessment year, the amendment made to the Act would be applicable even in case of pending proceedings. It is not the case of the respondent that the proceeding in regard to refund which has been granted under section-143(1) of the Act are concluded and final. The refund which has been granted under section 143(1) of the Act is provisional, to be finally determined when final assessment order is passed under section 143(3) of the Act. Explanation-2 to section 234D of the Act makes it clear that it would be applicable to pending proceedings i. e. where assessments in respect of such assessment year is not completed on 1/6/2003". 36. Recently the Special Bench of the Tribunal in Kotak Mahindra Capital Co. Ltd. vs. ACIT (2012) 138 ITD 57 (Mum) [SB] has also considered the similar issue and has held vide para 48 of the order as under:- "48. As regards the issue involved in ground no.3 relating to levy of interest u/s.234D, it is observed that Explanation 2 has been inserted in sec.234D by the Finance Act, 2012 with retrospective effect from 1.6.2003 clarifying that the provisions of sec.234D shall also apply to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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