TMI Blog2021 (8) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... en affirmed by Hon ble Apex Court in CIT Vs Rajasthan and Gujarati Charitable Foundation Poona [ 2017 (12) TMI 1067 - SUPREME COURT] we do not find any merit in the ground of appeal raised by the revenue. Addition u/s 68 - anonymous donations u/s 115BBC - HELD THAT:- As decided in own case [ 2019 (11) TMI 1657 - ITAT DELHI] the appellant has discharged the primary onus casted upon it to prove the identity of depositors, genuineness of transactions and credit worthiness of the depositors and therefore the unsecured loans accepted by the appellant from 5 persons during the year under appeal are treated as explained and substantiated - non production of the depositors by the' appellant Has wrongly been made a ground to make addition to make, addition u/s 68 of the Act. Further the action of the A.O. to treat the deposits under reference as anonymous donations u/s 115BBC is completely unlawful since all the loan creditors had opening balances and had also filed copies of ITRs, Thus, by no stretch of imagination could the AO treat these loans as anonymous donation u/s 115BBC. Now coming u the failure to produce the depositor for the personal deposition the same cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentative for assessee. Ground No. 1 relates to deleting the addition of ₹ 1.38 crore on account of excess fees. The Ld. DR for the Revenue supported the order of AO. The Ld. DR for the revenue submits this during the assessment, the AO brought on record sufficient material to show that assessee had collected excess fees, in addition to the fees fixed by State Government. The AO worked out the figure of excess fees charged by assessee during the relevant financial year. Charging of excess fees is nothing but the capitation fees. The capitation fee is nothing but the business income of the assessee. The Ld. DR for the revenue prayed for restoring the order of the AO by reversing the order of Ld. CIT(A). On the other hand Ld. AR of the assessee submits that assessee is a Society registered under the provision of Society Registration Act. The assessee is also having registration under section 12AA. The assessee charged the excess fee for giving extra classes to the students. The AO has not doubted the charitable activities of the assessee. The assessee utilized the excess fees charged for the object of the assessee. The Ld. CIT(A) appreciated the facts of the case and held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king a profit, it becomes an activity for profit. (4) If after meeting expenditure, a surplus arises incidentally from the activity carried on by the educational institution, it will not be cease to be one existing solely for educational purposes. (5) The ultimate test is whether on an overall view of the matter in the concerned assessment year the object make profit as opposed to educating persons. 7. Considering the facts the assessee has applied more than 85% of the total receipt on charitable purpose and there is no expressed finding of AO that assessee is not carrying the charitable activities. Therefore, we do not find any merit in the grounds of appeal raised by the revenue. Thus we have heard the order of Ld. CIT(A). 8. In the result ground No. 1 of the appeal is dismissed. 9. Ground No. 2 relates to deleting the addition of ₹ 1,79,42,159/- regarding depreciation. The Ld. DR for the Revenue supported the order of the AO. The Ld. DR for the revenue submits that the AO rightly disallowed depreciation of ₹ 1.79 Crores by taking view that same is not allowable as capital expenditure as the assessee has already taken benefits of application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings for assessment years 1977-78,1978-79 and 1979-80, the assessee claimed depreciation on the value of the building @2H% and they also claimed depreciation on furniture @ 5%. The question which arose before the Court for determination was ; whether depreciation could be denied to the assessee, as expenditure on acquisition of the assets had been treated as application of income in the year of acquisition? It was held by the Bombay High Court that section 11 of the Income Tax Act makes provision in respect of computation of income of the Trust from the property held for charitable or religious purposes and it also provides for application and accumulation of income. On the other hand, section 28 of the Income Tax Act deals with chargeability of income from profits and gains of business and section 29 provides that income from profits and gains of business all be computed in accordance with section 30 to section 43C. That, section 32(1) of the Act provides for depreciation in respect of building, plant and machinery owned by the assessee and used for business purposes. It further provides for deduction subject to section 34. In that matter also, a similar argument, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income was spent in acquiring those assets. This did not mean that in computing income from those assets in subsequent years, depreciation in respect of those assets cannot be taken into account. This view of the Tribunal has been confirmed by the Bombay High Court in the above judgment. Hence, Question No. 2 is covered by the decision of the Bombay High Court in the above Judgment. Consequently, Question No. 2 is answered in the Affirmative i.e., in favour of the assessee and against the Department. 12. Considering the decision of Hon ble Bombay High Court, which has been affirmed by Hon ble Apex Court in CIT Vs Rajasthan and Gujarati Charitable Foundation Poona (supra), we do not find any merit in the ground of appeal raised by the revenue. 13. In the result the appeal of the revenue is dismissed. 14. Ground No. 3 relates to deleting the addition of ₹ 47,00,850/-. The Ld. DR for the revenue supported the order of the assessing officer. On the other hand the ld AR for the assessee submits that that this ground of appeal is covered by the decision of Tribunal in assessee s own case in assessment year 2013-14 in ITA No. 2284/Del/2017. 15. We have consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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