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TMI Blog2023 (1) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 35,87,238/- is not the business income. 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in allowing the depreciation amounting of Rs.91,48,183/-" 2. The perusal of record shows that the order impugned in this appeal is passed by Ld. NFAC on 29.12.2021, however, present appeal was filed on 31.03.2022. Thus, there is a delay of 32 days in filing present appeal before the Tribunal. The Ld. Commissioner of Income-tax, Departmental Representative ("Ld.CIT-DR") for the Revenue submits that the period of delay is covered by the decision of Hon'ble Apex Court Hon'ble Apex Court in Suo Motu Writ Petition (C) No.3 of 2020, wherein the time limit for filing various appeals under general law as well as under special law were extended till 28.02.2022 and further 90 days' grace period was allowed with effect from 01.03.2022. Thus, the present appeal filed by Revenue is within the extended period of limitation as prescribed by Hon'ble Apex Court. 3. On the other hand, Ld. Authorized Representative (Ld.AR) for the assessee has not objected against such plea taken by Ld. CIT-DR for the Revenue for condonation of delay in Revenue's appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s non-members. Moreover, other receipts represented of Rs.53.35 Crores towards effluent treatment charges from its members and Rs.91,48,183/- being deferred grant transferred to mee the depreciation on assets acquired out of grants from Government of India which is considered as relating to mutual activities and hence excluded from the definition of Income Tax chargeable to tax under section 4 of the Act. The intimation under section 143(1) from DCIT (CPC), Bangaluru on 13,.06.2020 determining the income of assessee at Rs.58.98 crores and demand of tax of Rs.16.53 crores. Against the return of income of Rs.4.71 crores, wherein a refund of Rs.2.09 crores was claimed. The assessee reiterated that they are not carrying any business activities and therefore mutuality received on effluent treatment charges from its members were not taxable. However, interest received from banks on the excess funds and received from non-members of effluent treatment charges are taxable as being not covered by mutuality and as such those receive were offered for income for taxation. The assessee submitted that issue is covered in favour of assessee by the decision of Tribunal in earlier years for assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monetary limit fixed by Central Board of Direct Taxes (CBDT) for filing appeal before Hon'ble High Court. 10. We have considered the rival submission of both the parties and perused the materials available on record and have gone through the orders of lower authorities and Tribunal's orders in earlier years carefully. We find that there is no dispute that assessee was settled / incorporated as per the order of Hon'ble jurisdictional High Court to treat the effluent of hazardous / created in and around of Vapi. Further there is no dispute that the similar receipt from its members was treated as income in various preceding years. However, on appeal before Ld.NFAC/CIT(A) the assessee was granted relief in all preceding years and on further appeals by Department the order of Ld.NFAC/CIT(A) were upheld by Tribunal. 11. We find that this combination, in assessee's own case for assessment years 2013-14 dated 09.11.2021 on similar grounds of Revenue's appeals passed the following order, wherein the Tribunal has held: "4.We have heard the submission of Ld. Commissioner of Income Tax- Departmental Representative (CIT-DR) and Ld. Sr. DR for the Revenue and Ld. Authorized Represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other hand, Ld. CIT-DR for the Revenue supported the order of Assessing Officer. 15. We have considered the rival submission of both the parties and perused the materials available on record. We find that on similar issue in assessee's own case for assessment year 2013- 14 on similar ground of Revenue's appeal was dismissed with the following direction: "8. Ground No.2 relates to disallowance of depreciation by not reducing the contribution of members for acquisition of assets while computing depreciation. The Ld. AR for the assessee submits that member's contribution for acquisition of assets are shown under member's fund in the liability as capital which is utilized for acquisition of assets of the assessee and in no way, can be reduced in cost for asset by applying of section-43. The ld. AR for the assessee submits that Ld. CIT(A) appreciated the fact and granted relief to the assessee. 9. On the other hand, Ld. Sr-DR of the Revenue supported the order of Assessing Officer. The Ld. Sr. DR for the revenue submits that Assessing Officer disallowed the depreciation on the ground that the contribution received from the members for cost of asset should be reduced from WDV for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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