TMI Blog2014 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be accepted that would be going behind the contents of the order made by the competent authority u/s 10(23C)(via) – if the authority is satisfied with regard to the essential requirements or ingredients of section 10(23C)(via), then, it is hardly open for the Revenue to complain – thus, as such no substantial question of law arises for consideration – Decided against revenue. - Income Tax Appeal No. 1498 of 2012 - - - Dated:- 27-11-2014 - S. C. Dharmadhikari And A. A. Sayed, JJ. For the Appellant : Mr A R Malhotra For the Respondent : Mr P J Pardiwalla, Sr. Adv Mr M A Saldanha Vigil Juris JUDGMENT P.C. This Appeal challenges the order passed by the Income Tax Appellate Tribunal dated 20th March, 2012 in Income Tax Appeal No.3259/Mum/2011. The assessment year is 200708. 2. The Appeal before the Tribunal was filed by the Revenue against the order dated 15th November, 2010 of the Commissioner of Income Tax (Appeals). 3. The case of the Revenue is that the Assessee filed a return of income on 31st October, 2007 declaring losses of ₹ 9,96,83,553/- after claiming exemption under section 11 of the Income Tax Act. The revised return was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 of the paper book. 7. He submits that the Tribunal ignored the ratio in the Hon'ble Supreme Courts decision rendered in the case of M/s. Goetze (India) Ltd. V/s. Commissioner of Income Tax reported in (2006) 284 ITR 323. He also submits that the depreciation should not have been allowed as it was resulting in double deduction. In so far as the reasons assigned by the Tribunal in para 7 of the order under challenge, Mr. Malhotra submits that the ingredients of section 10(23C)(via) having not been satisfied, the Tribunal should not have gone ahead and granted the relief. Any order under this provision received during the course of the assessment will not alter the legal position. Mr. Malhotra invited our attention to section 10(23C) and submitted that the said provision clearly points towards the intention of the legislature inasmuch as the income received by any person on behalf of any hospital or other institution for the reception and treatment of persons suffering from illness or mental defectiveness or for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation, existing solely for philanthropic purposes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the purpose of reception and treatment of persons suffering from illness or mental defectiveness or for the reception and treatment of persons covered by clause (via) of section 10 (23C) that the Tribunal rightly relied upon the order dated 31st March, 2009. If that is how it relied upon and granted the relief claimed, then, this is not a fit case for interference in our further appellate jurisdiction and the Appeal does not raise any substantial question of law. Consequently, it deserves to be dismissed. 9. On the ground of double deduction, Mr. Pardiwalla would submit that the point or issue is covered by several judgments including of this Court, therefore, the same also do not raise any substantial question of law. The Appeal deserves to be dismissed. 10. There being no dispute about the facts as taken from the paper book, what we find is that the Tribunal as also the Commissioner held that the objects of the Trust remained unchanged. The Trust is registered with the Charity Commissioner of Mumbai and also registered under section 12A of the Act. The certificate under section 80G of the Income Tax Act has also been granted by the Director of Income Tax (Exemptions) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Malhotra is that ground No.2 at page 38 of the grounds of Appeal and ground No.3 were specifically raised before the Tribunal but the Tribunal has omitted them from consideration. This is also a submission proceeding on the footing that even if during the course of proceedings, an order under section 10(23C)(via) was received and forwarded, yet, in relation to a donation received from M/s. Shapoorji Pallonji Trust and that being for an old age home purpose, the same would not qualify or fall within the purview of the above legal provisions. Ground Nos.2 and 3 read as under: 2. On the facts and in the circumstances of the case, and in law, the learned Commissioner of Income Tax (Appeals) erred in law and facts by not appreciating the fact that the Assessee was wrongly enjoying double deduction u/s 11(1) (d) for the receipts of donation (in kind) towards corpus fund of ₹ 5,66,68,898/comprising of old age home building, lift, furniture, kitchenware, etc. received from Shapoorji Pallonji Trust the cost of which was NIL to the assessee trust, and claiming the value of the same assets as expenditure for purchase and application of income, when no such income was taken into ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not? 16. A perusal thereof reveals that the tendency of parties to complain to the higher Court on such issue is strongly deprecated. It has been pointed out by the Hon'ble Supreme Court and repeatedly that several grounds are set out in memos of Appeals and Petitions. It is eventually a counsel's discretion about which of that should be pressed and which ought not. If the counsel in his discretion chooses not to press certain grounds, then, the complaint of this nature cannot be made subsequently and in a higher Court. Even if such grounds are being pressed during the course of argument before the subordinate or lower Appellate Court, yet, it is not for the parties to complain to the higher Court straightway about such omission but to place material that the omission of such ground and which was raised in the memo was indeed pointed out to the subordinate or lower Appellate Court by making an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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