TMI Blog2016 (8) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 - - - Dated:- 31-8-2016 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER For The Appellant : Shri Amit Nigam, DR For The Respondent : Shri Rakesh Garg, Advocate ORDER This appeal is preferred by the revenue against the order of CIT(Appeals) inter alia on the following grounds:- 1. The Ld. Commissioner of Income Tax (Appeals) has erred in law and on facts in deleting the addition of ₹ 43,48,792/- accepting the Form No. 10 Form No. 10B as additional evidence in violation of Rule 46A of the Income Tax Rules 1962 without giving reasonable opportunity to the Assessing Officer as per Rule 46A(3) of the Income Tax Rules 1962. 2, The Ld. Commissioner of Income Tax (Appeals) has erred in law and on facts in deleting the addition of ₹ 43,48,792/- as during the course of assessment proceedings the assessee vide its reply Ref. No. UP /276/124/2015 dated 19.08.2015 in page No. 4 and para Nos. 09 10 has itself stated that there is no amount accumulated/set apart within the meaning of section 11(2) in last 10 years and there is no such income under section 11(2) for which Form-l0 required. 3. The Ld. Commissioner of Income Tax (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en for accumulation of amount, then there should be no addition. It was further contended that assessee has filed Form 10 on 9.3.2013 well within the time limit specified under the provisions of section 11 of the Act and in support thereof, copy of Form 10 was also filed before the CIT(Appeals). Audit report in Form 10B was also filed before the CIT(Appeals). It was further contended that since assessee has complied with all the conditions prescribed u/s. 11 of the Act by filing Form 10 well within the prescribed time, and has also deposited the accumulated sum in the nationalized bank, no addition should be made for the simple reason that Form 10 was not submitted at the time of assessment proceedings. Besides, assessee also placed reliance upon various judgments of different High Courts in support of its contention that Form 10 can be filed till an appeal is pending before the Tribunal. 4. The CIT(Appeals) re-examined the claim of the assessee in the light of various judicial pronouncements and was of the view that Form 10 and Form 10B were duly submitted for accumulation of income u/s. 11(2) before completion of assessment proceedings, therefore no addition was called for. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y after giving effect to the order of the Tribunal. 14. ln these circumstances, in the present case, the Tribunal was well within its jurisdictional entertain the new ground by which the assessee claimed the benefit under section 11(2) of the Act and adjudicate the tax liability of the assessee. As already noticed hereinbefore, the Tribunal has categorically found that the additional ground involves the question relating to interpretation of Section 11(2) and the facts on the basis of which such a decision is to be given regarding interpretation of Section 11(2) are not at all in dispute . In the circumstances, there is no infirmity in the order of the Tribunal, holding that the assessee is entitled to benefits allowable under Section 11(2) of the Act. In view of the above mentioned decision of Hon'ble Gujrat High Court the addition made by the AO cannot be sustained as the Form No. 10 and Form No. 10B were duly filed before ITO-I, Bahraich and before the undersigned during the course of appellate proceedings. Thus the Form No. 10 and Form No. 10B were duly submitted for accumulation of profit u/s 11(2) of the Act before the completion of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held that depreciation should be allowed even on assets, the cost of which had been allowed as exempt under section 11 in the preceding years. The Hon'ble Bombay High Court also held that depreciation should be allowed even on assets received on transfer from another charitable Trust on which no cost was borne by the assessee Trust. Other Hon'ble High Courts which have also taken the view that depreciation is deductible are the Hon'ble Karnataka High Court in the case of CIT Vs. Society of the Sisters of St. Anne(1984) 146 ITR 28 and the Hon'ble Madhya Pradesh High Court in the case of CIT Vs. Raipur Pallottine Society (1989) 180 ITR 579. In ClT Vs. Seth Manilal Ranchhoddas Vishram Bhavan Trust(1992) 105 CTR (Guj.) 303 it was held that depreciation should be allowed while computing such income under section 11(i) (a). The Contention of the appellant is further supported by the following judgments. A. DIT Vs. Vishwa Jagriti Mission(2014) 47 Taxman 56 ( Delhi HC) wherein it was held that claim of depreciation should be allowed as per principle related to commercial accounting when computing business income. B. CIT Vs. The Society of Sis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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