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TMI Blog2024 (1) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... alysis Center, Pathology Centre & holding Medical Camps) and promotion of dance and drama and fine arts in all forms without derogation to the generality of Secular Education. 2. Petitioner has been granted registration under Section 12A of the Income Tax Act, 1961 (the Act) by the Commissioner of Income-tax, vide order dated 28th January 1976 which is still in force. 3. Petitioner filed the original return of income on 29th September 2009 disclosing total deficit at Rs. 3,26,12,415/- after claiming exemption under section 11 of the Act. Petitioner also claimed depreciation on the capital assets of Petitioner. The said return was accompanied by a copy of the Annual Report and Statement of Account for the year ended 31st March 2009. In its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Petitioner filed an appeal before CIT(A) against the quantum order. Grounds taken were regarding denial of exemption under Section 11 of the Act, addition of expenses, non-grant of set off/carried forward of unabsorbed depreciation and excess of expenditure over income. 8. The CIT(A), vide order dated 9th July 2012, allowed Petitioner's appeal and granted exemption under Section 11 of the Act, deleted disallowed expenses and allowed claim of set off/carried forward of unabsorbed depreciation and excess of expenditure over income based on CIT vs Institute of Banking Personnel 264 ITR 110 (Bom.). 9. The department filed an appeal before the ITAT on 27th November 2011. The ITAT, vide order dated 30th May 2014, dismissed departmental appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawn which were restored in appeal by the Commissioner of Income Tax (Appeals) [CIT(A)]. Mr. Agrawal submitted that as per the third proviso to Section 147 of the Act the A.O. will have no jurisdiction to reopen the assessment on an issue which was the subject matter of appeal and the Appellate Authority has allowed the benefit of Section 11 of the Act. In effect the A.O. cannot sit in appeal over the decision of CIT(A). 14. In the second part of disallowance of claim of depreciation, Mr. Agrawal relied on Commissioner of Income Tax III, Pune vs. Rajasthan and Gujarati Charitable Foundation, Poona (2018) 89 taxmann.com 127 (SC) and submitted that a charitable trust is also eligible for claiming depreciation. 15. Mr. Suresh Kumar oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to Section 147 of the Act, the A.O. has no jurisdiction to assess or reassess any income which was the subject matter of an appeal. Since the grant of benefit of Section 11 of the Act was the subject matter of appeal and has been held in favour of assessee, the matter cannot be reopened. As regards the issue of disallowance of depreciation claim, the Hon'ble Apex Court in Rajasthan and Gujarati Charitable Foundation, Poona (supra) has held that a Charitable Trust is eligible for claiming depreciation.
20. In fact, this was also a subject matter of the appeal that was preferred by petitioner against the assessment order.
21. In the circumstances, Rule issued on 27th March 2015 is made absolute.
22. Petition disposed. X X X X Extracts X X X X X X X X Extracts X X X X
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