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TMI Blog2021 (5) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1961, ignoring the fact that the assessee has shown receipts from business activities and is covered by proviso to section 2(15) of the I.T.Act, 1961. (ii) On the facts and in the circumstances of the case and in law, Ld.CIT(A) has erred in allowing the claim of depreciation on fixed assets which will tantamount to double deduction, since acquisition of such assets had been allowed as application of income in earlier years. 2. Facts giving rise to the present appeal are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s 143(3) of the Income Tax Act, 1961 ('the Act') was framed vide order dated 20.12.2016. The AO while framing the assessment, disallowed the claim of exemption u/s 11 & 12 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 11 (1) from the very beginning but the same was denied during the assessment year 2009-10 by invoking the proviso to section 2(15) mainly on the ground that the assessee was involved in trade, commerce or business as there was a restaurant run in the name of Dilli Dastarkhwan in the premises of the assessee and the assessee was receiving income from the restaurant. The assessee appealed against the order of the Assessing Officer denying exemption under section 11(1) and the same was allowed by the Id. CIT (A)-XXI, New Delhi (old) vide the order dated 30/05/2012. Appeal filed by the Revenue against the order of held. CIT (A) was dismissed by the Hon'ble ITAT vide order dated 30/07/2014 in ITA No. 4127/Del/2012. The Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to Assessment Year 2009-10. The Revenue has not brought any other binding precedent into our notice. Therefore, we find that there is no reason to interfere in the findings of Ld.CIT(A). Ground No.1 raised by the Revenue in this appeal is dismissed. 10. Ground No.2 raised by the Revenue in this appeal is against the allowance of depreciation on fixed assets. 11. Ld. CIT DR supported the order of Assessing Officer and submitted that Ld.CIT(A) was not justified in allowing the claim of depreciation on fixed assets. Ld. Counsel for the assessee submitted that the issue has been decided in favour of the assessee by the judgement of Hon'ble Delhi High Court in the case of DIT(Exemption) vs Indraprastha Cancer Society in ITA no.240, 348 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Explanatory Notes to the provisions of the Finance (No. 2) Act, 2014 issued vide Circular No. 1/2015 dated 21st January, 2015. Section 11 was amended by the Finance (No. 2) Act, 2014 whereby a new sub-section has been inserted which provides that under section 11, income for the purposes of its application shall be determined without any deduction or allowance by way of depreciation or otherwise in respect of any asset, acquisition of which has been claimed as an application of income under section 11 in the same or any other previous year. Para 7.5 of the said Explanatory Notes is reproduced as under: "7.5 The second issue which had arisen urns that the existing scheme of section 11 as well as section 10(23C) of the Income-tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to income from property held for charitable purposes shows that depreciation per se was not allowed as a deduction in the case of charitable or religious institutions. This issue has been laid to rest by amendment to section 11 by the Finance (No. 2) Act, 2014 which is effective from the assessment year 2015- 16 and subsequent years. However, relying on the latest decision of the Hon'ble Delhi High Court in the matter of DIT (Exemption) vs. Indraprastha Cancer Society (supra), the claim of depreciation of the appellant is allowed. Ground of appeal No. 2 is hence, allowed." 13. The findings of Ld.CIT(A) is not rebutted by the Revenue. The Ld.CIT(A) has followed the judgement of Hon'ble Delhi High Court in the case of DIT(Exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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