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TMI Blog2014 (10) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) and the Tribunal unsuccessfully is canvassed before us by Mr.Tejveer Singh, learned counsel appearing for the Revenue in support of this Appeal. He submits that the Assessing Officer rightly held that the claim of depreciation on the immovable property to the extent of Rs. 59,44,712/- could not have been allowed or granted in view of the fact that the relevant capital expenditure on the concerned assets has been claimed in the respective years. Mr.Tejveer Singh submits that a substantial question of law arises for determination in this Appeal and particularly in the light of the argument canvassed before the Tribunal and reiterated before us. 4. Mr.Tejveer Singh submits that the Tribunal as also the Commissioner of Income Tax (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the Trust could not have taken any assistance and aid of Section 32 of the Income Tax Act, 1961 to claim this deduction. 6. This was the very argument which was canvassed in two decisions which have been rendered by this Court. In the decision in the case of Director of Income Tax (Exemption) v/s Framjee Cawasjee Institute reported in (1993) 109 CTR 463 (Bom), the Revenue urged that though the Trust may be deriving the income from depreciable assets that was taken into account in computing the income of the Trust, but in fact the full capital income was allowed in the year of acquisition of assets. Hence, the claim for depreciation now cannot be granted. The Tribunal held against the Revenue in that case as well by explaining the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt.26th Nov., 1968 issued by the CBDT under which it has clarified that in the case of a business undertaking held under trust its income will be income as shown in the accounts of the undertaking and that where the trust derives income from house property, interest on securities, capital gains or other sources, the income should be understood in its commercial sense. 4. We are also informed that in the earlier years when a similar question arose in respect of an assessee known as Laxmi Charitable Trust, an application under s.256(2) was rejected by this High Court. In our view, therefore, the answer to the question is obvious. 5. We may also point out that the question as framed is somewhat misleading and is based on misconception, in so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income in the year of acquisition? It was held by the Bombay High Court that section 11 of the Income Tax Act makes provision in respect of computation of income of the Trust from the property held for charitable or religious purposes and it also provides for application and accumulation of income. On the other hand, section 28 of the Income Tax Act deals with chargeability of income from profits and gains of business and section 29 provides that income from profits and gains of business shall be computed in accordance with section 30 to section 43C. That, section 32(1) of the Act provides for depreciation in respect of building, plant and machinery owned by the assessee and used for the business purposes. It further provides for deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Question No. 2 herein is identical to the question which was raised before the Bombay High Court in the case of Director of Income Tax (Exemption) v. Framjee Cawasjee Institute (1993) 109 CTR 463 (Bom). In that case, the facts were as follows: The assessee was the Trust. It derived its income from depreciable assets. The assessee took into account depreciation on those assets in computing the income of the Trust. The Income Tax Officer held that depreciation could not be taken into account because, full capital expenditure had been allowed in the year of acquisition of the assets. The assessee went in appeal before the Assistant Appellate Commissioner. The appeal was rejected. The Tribunal, however, took the view that when the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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