TMI Blog2014 (1) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed as per the decision of Hon'ble Gujarat High Court which is binding on us and it is not resulting into allowing of double deduction – Decided against Revenue. - I.T.A. Nos.285 & 286/Ahd/2013 - - - Dated:- 19-7-2013 - Shri D. K. Tyagi And Shri A. K. Garodia,JJ. For the Appellant : Shri R. K. Vohra, DR For the Respondent : Shri Pritesh Shah, AR ORDER Per Shri A. K. Garodia, Accountant Member:- Both these appeals are filed by the Revenue which are directed against the combined order of ld.CIT(A)-XXI Ahmedabad dated 02/11/2012 for Assessment Years 2008-09 2009-10. Since a common issue is involved, both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience. Grounds raised by the Revenue are identical in both the years except difference in amount and, hence, the grounds are reproduced from ITA No.285/Ahd/2013 for AY 2008-09. The Ld.CIT(A) has erred in law and on facts in allowing the appeal of the assessee. i) The Ld.Commissioner of Income-Tax (Appeals) has erred in law and on facts in deleting the disallowance of depreciation of Rs.10,37,852/- made by the Assessing Officer. ii) The Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mate claim for depreciation of Rs.2,44,99,739/- in utter disregard to the judgement of the ITAT, Ahmedabad Bench - A dated 24.7.2009 in ITA Nos.2331/Ahd/2004, 84/Ahd/2006, 2782/Ahd/2007 and 3208/Ahd/2007 in the case of Ahmedabad South Indian Association, which judgement is binding on all Income-tax authorities in the State of Gujarat." The Hon'ble ITAT vide its order dated 15.06.2012 has observed as under:- "4. Now the assessee is in appeal before us. The A.R. for the assessee has filed the gist in the case of following judgements: 1. CIT vs. Sheth Manilal anchhoddas Vishram Bhavan Trust 198 ITR 598 (Guj). 2. CIT vs. Rao Bahadur Calavala Cunnan Chetty Charities 135 ITR 485 (Madras High Court) 3. Shrimad Vallabh Vishwa Dharma Sanstha vs. ACIT 102 TTJ (Ahd) 653 4. Deputy CIT Ors. Vs. Market Committee 13 DTR 157 (Del) (Trib.) 5. CIT vs. Market Committee 330 ITR 16 6. CIT vs. Tiny Tots Education Society in ITA No.93 of 2010 (Punjab Haryana Courts) 7. CIT vs. Institute of Banking Personnel Selection 264 ITR 110 (Bom). He also filed a copy of ITAT "C" Bench, Ahmedabad decision in the case of Adharshila Education Charitable Trust in ITA No.1443/Ahd/2008, A.Y. 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red with". 5. Ld.D.R. Vehemently argued to confirm the order of ld.CIT(A). 6. We have perused the orders of authorities below and gone through the case law cited by both the side. The assessee had already been allowed assets as expenditure/application of fund. When full value of assets had been adjusted as a expenditure or application of fund, no assets remained to be depreciated. We are respectfully following the decision of Gujarat High Court as well as 'C' Bench decision in above case, in which depreciation has been allowed even capital assets allowed fully as an expenditure. Being judicial precedent, we also allow this appeal in favour of the assessee. 4.3. Further, the AO has relied on the decision of Hon'ble Supreme Court in the case of Escorts Ltd. vs. Union of India (1993) 199 ITR 43 (SC) while disallowing the depreciation of capital assets held by charitable trust. This aspect was also elaborated by Hon'ble ITAT "C" Bench, Ahmedabad in appeal No.1322/Ahd/2011 in the case of Sardar Patel Institute of Public Administration for Asst.Year 2008-09. The Hon'ble ITAT vide para-4 has observed as under: "Before us Ld.CIT-DR has supported the assessment order and made submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iny Tots Education Society 330 ITR 21 (P H), the judgement of Hon'ble Apex Court has been distinguished. Hence, we find that out of two judgements on which reliance has been placed by ld.DR of the Revenue which are cited-supra in ground No.(ii) of Revenue's appeal, one judgement of Hon'ble Apex Court has already been distinguished by Hon'ble Punjab Haryana High Court. Regarding second judgement of Hon'ble Kerala High Court rendered in the case of Lissie Medical Institutions vs. CIT 348 ITR 344(Ker.), we find that in this case, the issue has been decided by the Hon'ble Kerala High Court on the basis that if depreciation is allowed to a charitable-trust, then it will result into a possibility of revenue leakage and generation of cash surplus and of black-money. We fail to understand that how allowing the depreciation can result into cash surplus because depreciation is allowed by way of reducing book value of the asset and there is no effect on cash availability as a result of allowing the depreciation. In the present case also, this is not the case of AO that allowing the depreciation will result into any cash surplus which will go outside the books of accounts of the assessee-tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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