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2017 (1) TMI 395 - ITAT MUMBAI

2017 (1) TMI 395 - ITAT MUMBAI - TMI - Carry forward of the loss - loss as claimed by the assessee treating the same as excess application of loss u/s.11 - carry forward of excess expenditure of earlier years for set off in the subsequent years - Held that:- Finding and directions of the learned CIT(A) is in accordance with the decision of the Hon’ble Bombay High Court in the case of Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY High Court] wherein held that income derived f .....

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n section 11 of the Act and that such adjustment will have to be excluded from the income of the Trust under section 11(1)(a) of the Act. - Decided against revenue - ITA No. 2662/Mum/2015 - Dated:- 4-1-2017 - Shri Jason P Boaz, AM And Shri Ram Lal Negi, JM Revenue by : Shri Rajat Mittal Assessee by : Shri Amit Khatiwala ORDER Per Jason P Boaz ( A.M ) This appeal by the Revenue is directed against the order of the CIT(A)-1, Mumbai dated 05/02/2015 for A.Y.2009-2010. 2. The facts of the case, brie .....

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sequent years as there is no provision to allow the same. 2.2. Aggrieved by the order of assessment dated 31/10/2011 for A.Y.2009-10 to the assessee preferred an appeal to the CIT(A) - 1, Mumbai on this issue. The learned CIT(A) allowed the assessee s appeal vide the impugned order dated 05/02/2015, following the decision of the Hon ble High Court of Bombay in the case of CIT v. Institute of Banking Personnel Selection (2003) 264 ITR 110 (Bombay). 3.1. Revenue, being aggrieved by the order of th .....

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mulation of income u/s.11(1)(a) or as corpus donation u/s.11(1)(d) in current year and then as 'application of income u/s.11(1)(a) in the 'subsequent years which was legally not permissible? 2. Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in allowing the claim of the assessee for carry forward of the said deficit, ignoring the fact that there was no express provision in the I.T. Act, 1961 permitting allowance of such claim. " 3.The Appell .....

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IT(A). According to the learned AR, the issue in question, as raised in revenue s grounds (supra) is covered squarely in favour of the assessee by the decision of the jurisdictional High Court in the case of CIT v Institute of Banking Personnel Selection (supra), and has also been followed by decision of the Tribunal in the case of ACIT v Mandke Foundation (ITA No.3837/Mum/2015 dt.29/02/2016.) 3.3.1. We have heard the rival contentions and perused and carefully considered the material on record, .....

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on (supra) which covers the issue squarely in favour of the assessee. At para 5 thereof the Hon ble High Court has held as under:- 5. Now coming to question No. 3, the point which arises for consideration is : whether excess of expenditure in the earlier years can be adjusted against the income of the subsequent year and whether such adjustment should be treated as application of income in subsequent year for charitable purposes? It was argued on behalf of the department that expenditure incurre .....

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code mentioned in section 11 to section 13 of the Income Tax Act and that the income of the Charitable Trust was not assessable under the head "profits and gains of business" under section 28 in which the provision for carry forward of losses was relevant. That, in the case of a Charitable Trust, there was no provision for carry forward of the excess of expenditure of earlier years to be adjusted against income of subsequent years. We do not find any merit in this argument of the depar .....

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