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The Commissioner of Income Tax-II, Thane Versus M/s. Jawaharlal Nehru Port Trust

2015 (6) TMI 684 - BOMBAY HIGH COURT

Disallowance u/s 14A read with Rule 8D - Held that:- Question No.(i) stands concluded in favour of the respondent-assessee and against the appellant/revenue by the decision of this Court in M/s Godrej & Boyce Mfg. Co. Ltd. Vs. DCIT reported in [2010 (8) TMI 77 - BOMBAY HIGH COURT] - Decided in favour of assessee.

Denial of exclusion of income exempt u/s 10(35) from the total income of the assessee for the purpose of calculating - whether 85% of the income had been applied for the obje .....

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ural ITO reported in (1977 (11) TMI 57 - MADRAS High Court ) and merely stating that the same are not relevant does not meet the requirement of natural justice viz. An order supported by reasons. In the above view of the matter, the impugned order of the Tribunal setting aside order of CIT (Appeals) and restoring it to him for fresh consideration cannot be found fault with.

Disallowance of depreciation - Tribunal allowed claim - Held that:- Amount spent on acquiring assets are taken a .....

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ety of India [2015 (1) TMI 480 - BOMBAY HIGH COURT], the Question stands concluded in favour of the respondent/assessee and against the revenue

Disallowance of carry forward of excess application of income of the earlier years against the income of the year under consideration - ITAT remanded issue - Held that:- The Tribunal had restored the issue for the earlier years to the Assessing Officer to decide the matter afresh and to determine the application of income in terms of Section 1 .....

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of 2013 - Dated:- 8-6-2015 - M S Sanklecha And N M Jamdar, JJ. For the Appellant : Mr Suresh Kumar, Adv. For the Respondent : Mr P J Pardiwalla, Sr. Adv. a/w Mr S G Dalal and Mr S G Lakhani, Advs. ORDER P.C. These two appeals filed by the Revenue under Section 260A of the Income Tax Act, 1961 (the 'Act') challenges a common order dated 21 November 2012 passed by the Income Tax Appellate Tribunal (the 'Tribunal'). The common impugned order disposes of the respondent-assessee' .....

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he Bombay High Court in the case of M/s Godrej & Boyce Mfg. Co. Ltd. Vs. DCIT has been contested by way of SLP before the Supreme Court? (ii) Whether, on the facts and in the circumstances of the case, and in law the Tribunal in setting aside the order of the CIT(A) confirming the order of the AO denying exclusion of income exempt u/s 10(35) of the I.T. Act from the total income of the assessee for the purpose of calculating whether 85% of the income had been applied for the objects of the t .....

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isions in case of (a) Escorts India Ltd. Vs. UOI 199 ITR 43 (SC) and (b) Lissie Medical Institutions Vs. CIT 348 ITR 344 (Ker)? (iv) Whether, on the facts and in the circumstances of the case, and in law the Tribunal in setting aside the order of the CIT(A) confirming the order of the AO disallowing carry forward of excess application of income of the earlier years against the income of the year under consideration. It failed to appreciate that application of income in a given year cannot exceed .....

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he decision of this Court in the M/s Godrej & Boyce Mfg. Co. Ltd. (supra) has also been dismissed. Accordingly, Question No.(i) does not raise any substantial question of law and is thus not entertained. 4. Regarding Question No.(ii): (a) The respondent-assessee had income from bonds which were not forming a part of total income under Section 10(35) of the Act. Thus, according to the respondent-assessee, the above amounts was not to be considered as part of the income for the purpose of it&# .....

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vasi Muthukumaraswami Thambiran & Ors. Vs. Agricultural ITO reported in (1978) 113 ITR 889 (Mad.) in support of its contention that income excluded under Section 10 of the Act is not to be considered for purpose of Section 11 of the Act. However, the CIT (Appeals) while disposing the appeal disregarded the two decision by merely holding that they are not relevant to the case of the appellant without pointing out in what manner the two cases were not relevant to the issue under consideration. .....

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he CIT (Appeals) was an order which upheld the view of the Assessing Officer. (e) We find that the order passed by the CIT (Appeals) has not dealt with the decisions cited by the respondent-assessee at the time of hearing before it and merely stating that the same are not relevant does not meet the requirement of natural justice viz. An order supported by reasons. In the above view of the matter, the impugned order of the Tribunal setting aside order of CIT (Appeals) and restoring it to him for .....

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ficer disallowed the claim for depreciation on the ground that the same would amount to double deduction in as much as the entire amount attributable to purchase of fixed assets was not subject to tax as being applied for the object of the respondent-assessee and on the same amount, the respondent-assessee was claiming depreciation. (b) On appeal, the CIT (Appeals) upheld the decision of the Assessing Officer on the ground that allowing deduction on account of depreciation would amount to double .....

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ld be reduced while determining the percentage of funds applied for the purpose of Section 11 of the Act. In the decision of the Punjab and Haryana High Court in the case of CIT Vs. Market Committee reported in 330 ITR 16 relied upon by the Tribunal in Ville Parle Kelavani Mandal (supra) the decisions of the Apex Court in Escorts Vs. UOI reported in 100 ITR 43 and of Kerala High Court in Lessie Medias Infotech Vs. CIT reported in 348 ITR 344 were also considered. (d) The grievance of the revenue .....

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by this issue for consideration by its order dated 5 March 2014. Thus it is commended that this issue also be admitted for consideration. (e) We find that the decision of the Tribunal in the case of Ville Parle Kelavani Mandal (supra) rendered on 5 October 2012 had been challenged by the revenue before this Court in the Income Tax Appeal No. 693/2010. This Court by order dated 23 March 2015 dismissed the revenue's appeal on the ground that claims the deduction on account of depreciation woul .....

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g made by the revenue before us and after considering it's earlier decision including the order dated 5 March 2014 in Shanmukhanand Fine Arts and Sangitha Sabha (supra) admitting the appeal, came to the conclusion that there is no question of double deduction. This on the ground that amount spent on acquiring assets are taken as application of income for the purposes of Section 11 of the Act and the depreciation claimed thereafter on the same amount i.e. the value of fixed assets during the .....

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and is thus not entertained. 6. Regarding Question No. (iv): (a) The respondent-assessee had positive income for subject assessment years. The income in the two assessment years was sought to be set off against the excess application of income in the earlier years by the respondent-assessee. The Assessing Officer disallowed the set off/adjustment for earlier years on the ground that the respondent-assessee had not claimed exemption under Section 11 of the Act i.e. Assessment Year 200304, 2004-05 .....

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