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TMI Blog2014 (11) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... al support to manufacturers and users, to act as a financial intermediary and assisting in commercialisation of the user of renewable energy sources. The assessee has received financial support from Government of India, World Bank, Global Environment Facility, Danish International Agency, Swiss Development Corporation and ADB. The assessee received certain amount of income which was claimed as exempt under section 10(23G) of the Income-tax Act, 1961 (hereinafter called "the Act"). The Assessing Officer segregated the assessee's incomes into two parts, viz., from core activity and non-core activity. As regards the income from core activity, the Assessing Officer allowed exemption under section 10(23G). As regards the income from other activity consisting of interest on deposit, interest on staff loan, interest on Government securities, service charges for handling UNDP programme, miscellaneous income, profit on sale of fixed assets, difference in exchange, commitment fee, application fee, MNES service charges, the Assessing Officer treated it as "income from other sources" and, hence, did not allow the benefit of exemption under section 10(23G). When the matter finally came up b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative has tried to highlight the nature of income, but we cannot accept such note on its face value. The correct nature of the above items of income, as to whether falling under the head "Income from other sources" or "Profit and gains of business or profession", cannot be determined at our end in the light of the non-speaking order passed by the authorities below on the exact nature of such income. The Tribunal can adjudicate when some finding is returned, either way, by the authorities below in respect of such items of income. In the absence of any such finding, we are handicapped to adjudicate their nature. In our considered opinion, the ends of justice would meet adequately if the matter is sent back to the Assessing Officer for elaborating, considering and then deciding the true nature of income of the above discussed items in the light of the judgment of the hon'ble jurisdictional High Court by means of a speaking order. 4. The second issue remitted by the hon'ble High Court to the Tribunal is about the granting or non-granting of exemption under section 10(23G) of the Act in respect of the abovereferred items of income. In our considered opinion, the second questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the first question about the determination of the nature of income. The last issue in this batch of appeals, which forms the content of the Revenue's appeal, is about the calculation of disallowance of expenses relating to the earning of exempt income under section 10(23G). This issue is also consequential to the granting of exemption under section 10(23G). Only if the exemption is allowed that the question of finding out the disallowable expenses incurred in relation to the earning of such income can be taken up for consideration. We, therefore, direct the Assessing Officer to decide this issue after rendering decision on the question of exemption under section 10(23G) in respect of the above items of income. 9. In the result, both appeals are allowed for statistical purposes to the above extent. Assessment year 2004-05 10. There are two cross-appeals-one by the assessee and the other by the Revenue-which arise out of the order passed by the Commissioner of Income-tax (Appeals) on December 14, 2007. The first ground raised by the Revenue is against the direction given to the Assessing Officer for calculating disallowance of expenses relating to earning of exempt income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 is about the allowing of deduction under section 36(1)(viii). These issues are similar to those discussed in the appeals for the earlier years. Here again, we find that the authorities below have followed their respective earlier orders without making any elaborate discussion about the true nature and purport of the items of income. Following the view taken hereinabove, we set aside the impugned order and remit the matter to the file of the Assessing Officer for taking a fresh decision in this regard as per law, after allowing a reasonable opportunity of being heard to the assessee. 14. The only other ground is against the direction given by the learned Commissioner of Income-tax (Appeals) for allowing depreciation amounting to Rs. 11,29,023. Briefly stated, the facts apropos this ground are that the assessee claimed depreciation of Rs. 10,04,990 and Rs. 1,24,033 on office building and residential building at the rate of 10 per cent. and 5 per cent. respectively. As per note No. 5 appended with the return of income, conveyance deeds in respect of these leasehold buildings were yet to be executed in favour of the company. The assessee was called upon to explain as to how the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sent back to the Assessing Officer for identifying the cost of land, if any, included in the amount on which depreciation has been claimed. We order accordingly and direct the Assessing Officer to refuse depreciation on the cost of land, if any, included in such gross value on which depreciation was claimed by the assessee. Needless to say, the assessee will be allowed a reasonable opportunity of hearing in this regard. 16. In the result, the appeal is partly allowed for statistical purposes to the above extent. Assessment year 2006-07 17. There are two cross-appeals-one by the assessee and the other by the Revenue-which arise out of the order passed by the Commissioner of Income-tax (Appeals) on August 31, 2010. The only issue raised by the assessee in its appeal is against the decrease in deduction under section 36(1)(viia)(c). The Revenue is aggrieved against the treatment of various items of income as "business income" as against the Assessing Officer's opinion of "income from other sources". The second ground is about the allowing of exemption under section 10(23G) and the third ground is about allowing of deduction under section 36(1)(viii) of the Act. 18. After co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the learned Commissioner of Income-tax (Appeals) on July 2, 2012. The only ground taken by the assessee is about the decrease in deduction under section 36(1)(viia)(c). The Revenue is aggrieved against the treatment of various items of income as "Business income" instead of "Income from other sources" as held by the Assessing Officer ; entitlement of deduction under section 36(1)(viii) ; and granting of depreciation on office premises as well as residential flat. 26. After considering the rival submissions and perusing the relevant record, we find that the issues raised in these appeals are similar to those taken up and decided for the earlier years. Following the same view, we set aside the impugned order and send the matter back to the file of the Assessing Officer for deciding them in conformity with our decision given in the earlier paras, after allowing a reasonable opportunity of hearing to the assessee. 27. In the result, the appeals are allowed for statistical purposes to extent indicated above. Assessment year 2009-10 28. The Revenue has preferred this appeal against the order passed by the learned Commissioner of Income-tax (Appeals) on July 2, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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