TMI Blog2019 (6) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... ME COURT] and various other decisions payments made prior to due date of filing of return as prescribed u/s. 139 (1) cannot be disallowed u/s. 36 (1) (va) r.w.s. 2 (24) (x). Since in the instant case admittedly the deposits towards EPF has been deposited prior to the due date of filing of return u/s. 139 (1) therefore, following the consistent view of the coordinate benches of the Tribunal no disallowance u/s. 36 (1) (va) r.w.s. 2 (24) (x) can be made. The ground raised by the assessee is accordingly allowed. Benefit of deemed application on account of interest accrued but not received under clause 2 of explanation to section 11 (1) - HELD THAT:- The amount of accrued interest of FDR is the income derived during the impugned assessment years but not received shall be treated as deemed to be applied. I find merit in the above arguments of the assessee. A perusal of the computation of income for the A.Y.2013-14 shows that the net surplus of ₹ 73,93,794/- includes the income of ₹ 2,81,769/- which has not actually been received. The assessee in its form No.10B in clause No.2 of annexure containing statement of particulars, has clearly mentioned that the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the development fees of ₹ 20,00,000/- paid to M/s. Agra Dioceasn Trust Association, Agra as application of income, is bad in law and against the facts and circumstances of the case. 3. The facts of the, case in brief, are that the assessee is a society and is registered with the Registrar of Society, U. P, under Society Registration Act. The assessee society has been granted registration u/s 12 AA of the IT Act by the CIT, Meerut vide order dated 28.05.2009. It filed its return of income on 06.11.2013 declaring nil income. The AO during the assessment proceedings observed that assesee has debited development fees of ₹ 20,00,000/- to the income and expenditure account. He, therefore, asked the assessee to explain the nature of payment of development fees of ₹ 20,00,000/- and also furnish the copy of agreement entered into and furnish the details of last five years. The assessee filed the requisite details alongwith a copy of letter dated 02.02.2016 by Agra Diocesan Trust Association (ADTA in short) a company registered u/s 25 of Company Act 1956 u/s 8 of the company Act 2013 registered u/s 12A of the IT Act and is parent body of Diocese of Agra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y registered body under 12AA. 7.3.1 Examination of facts reveals that the payment has been made without agreement and ADTA is a company registered under company's Act which olding trust of Diocese of Agra and managing properties of many colleges, schools, churches etc. During the course of appellate proceedings it has been argued that the above said donation or contribution should be allowed as it is for the same purposes as that of appellant and placed reliance on CIT vs Thanthi Trust (SC) (1999) 239 ITR 502, CIT vs Shri Aurobindo Memorial Funds Society Madras 162 CTR 254, CIT vs Shri Ram Memorial Foundation (Del.) (2004) 140 Taxman 263, CIT vs H.P.S. Social Social Welfare Foundation (Del.) (2011) 198 Taxman 63. It is noted that neither during appellate proceedings nor during assessment proceedings appellant could prove that objective of ADTA is same as that of appellant and the donation is towards corpus of the ADTA. The memorandum of association of ADTA reveals that ADTA works for furtherance of religious and charitable work of church of North India and in management of property etc. Thus case laws relied upon by the appellant are not applicable to the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onor. Therefore, the contention of the Assessing Officer/CIT(A) is arbitrary and without any merit. He also relied on CBDT instruction No.1132 regarding availability of exemption in the hands of charitable trusts of amounts paid as donation to other charitable trust and the decision of Hon ble Gujarat High Court in the case of CIT Vs. Sarladevi Sara Bhai Trust No.2 reported 172 ITR 698. 9. The Ld. DR on the other hand heavily relied on the order of the Assessing Officer and CIT(A). 10. I have considered the rival arguments made by both the sides and perused the orders of the lower authorities. I find the Assessing Officer rejected the claim of development fees of ₹ 20 lacs paid to ADTA as application of income on the ground that the money has been siphoned off every year and further there is no such agreement between the assessee and ADTA. I find the Ld. CIT(A) upheld the action of the Assessing Officer which has been reproduced in the preceding paragraph. It is the submission of the Ld. Counsel for the assessee that the assessee is paying such development fees to ADTA since last so many years and the Assessing Officer in the past as well as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (I) (va) r.w.s. 2 (24) (X) on account of delay in deposit of Employees Provident Fund. Before the CIT(A) it was argued that the provisions of section 36 (1) (va) r.w.s. 2 (24) (x) are not applicable to trust. However, the Ld. CIT(A) was not satisfied with the arguments advanced by the assessee and upheld the action of the Assessing Officer on the ground that although the payments have been made before the due date of filing of the return, however, they were paid after the due date prescribed under the EPF Act. It is the submission of the Ld. Counsel for the asseessee that in view of the decision of Hon ble Supreme court in the case of CIT Vs. Alom Extrusions reported in 319 ITR 306 and various other decisions payments made prior to due date of filing of return as prescribed u/s. 139 (1) cannot be disallowed u/s. 36 (1) (va) r.w.s. 2 (24) (x). Since in the instant case admittedly the deposits towards EPF has been deposited prior to the due date of filing of return u/s. 139 (1) therefore, following the consistent view of the coordinate benches of the Tribunal I am of the considered opinion that no disallowance u/s. 36 (1) (va) r.w.s. 2 (24) (x) can be made. The ground raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not allowing the depreciation of ₹ 18,38,087/- as application of income. 16. The assessee has also taken the following additional grounds which are as under :- 1. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have considered income after depreciation in view of several judicial decisions. 2. That in any case and in any view of the matter, depreciation ought to have been deducted from the amount of income. 17. Referring to the decision of Hon ble Supreme Court in the case of NTPC Limited Vs. CIT reported in 229 ITR 383 and the decision in the case of Singhad Technical Education Society reported in 397 ITR 344, he submitted that since the above grounds do not require fresh facts to be investigated and go to the root of the matter, therefore, the same should be admitted. 18. After hearing both the sides and considering the fact that no fresh facts are required to be investigated, the additional grounds raised by the assessee are allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. After hearing both the sides. I find the above ground is identical to Ground No.4 in ITA No.3587/Del/2018 for A. Y. 2013- 14. I have already decided the issue and the ground has been allowed. Following similar reasonings the above ground of appeal of the assessee is allowed. 24. Ground No.4 by the assessee and the additional grounds read as under :- 4. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not allowing the depreciation of ₹ 89,94,945/- as application of income. Additional grounds :- 1. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have considered income after depreciation in view of several judicial decisions. 2. That in any case and in any view of the matter, depreciation ought to have been deducted from the amount of income. 25. After hearing both the sides, I find the above grounds are identical to Ground No. 5 and additional grounds in ITA No.3587/Del/2018 for A. Y. 2013-14. I have already decided the issue and the grounds have been allowed. Following si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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