Depreciation under section 32 when the cost had already been claimed in the preceding year by application of Income

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI ‘A’ BENCH

BEFORE SHRI R.K. GUPTA, JM & SHRI A.N. PAHUJA, AM

ITA no.2905/Del/2012

Assessment year: 2009-10

ADIT(E), Inv. Trust Circle -I, 3rd Floor,

Aaykar Bhawan, District Centre Laxmi

Nagar, New Delhi

(Appellant)

V/s.

Automotive Component

Manufacturers Association of India

The Capital Court, Olof Palme Marg

Munirka, New Delhi-110067

[PAN: AAATA1724F]

 (Respondent)

Assessee by Shri K.K. Khanna, AR

Revenue by Shri Pithi Lal, DR

Date of hearing 08-08-2012

Date of pronouncement 28-08-2012

O R D E R

A.N.Pahuja:-

This appeal filed on 11.06.2012 by the Revenue against an order dated 18th April, 2012 of the ld. CIT(A)-XXI, New Delhi, raises the following grounds:-

1. “On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in allowing depreciation as application of income as the assessee trust has already claimed as application of income at the time of addition to fixed assets.

2. The appellant craves leave to add, to alter or amend any ground of appeal raised above at the time of hearing.”

2. Facts, in brief, as per the relevant orders are that return declaring income of `1,92,16,940/- filed on 29-09-2009 by the assessee, providing consultancy of automotive components, was selected for scrutiny with the service of notice u/s 143(2) of the Income-tax Act, 1961 (herein after referred to as the ‘Act’]) issued on 16.09.2010.During the course of assessment proceedings, the Assessing Officer[AO in short] noticed that though assessee was registered u/s 12A of the Act, it did not claim exemption u/s 11 of the Act in view of insertion of proviso to section 2(15) of the Act introduced by the Finance Act, 2009 w.e.f 01.04.2009. To a query by the AO as to why depreciation be not disallowed, the assessee having already claimed the entire money spent on acquisition of capital assets by way of application of funds, the assessee replied that merely because cost of acquisition of capital asset has been claimed as application of income for charitable purposes in the year of acquisition, deduction of depreciation in determination of income cannot be denied. Inter alia, the assessee relied upon decisions in CIT V Society of the sisters of St. Anne, 146 ITR 28 (Kar);CIT V Raipur Pallottine Society 180 ITR 579(MP);CIT V Seth Manilal Ranchhoddas Vishram Bhawan Trust 198 ITR 598 (Guj);CIT V Institute of Banking (2003) 264 ITR 110 (Bombay);CIT V Market Committee Pipli (2011) 330 ITR 16 (P&H);CIT V Rao Bahadur Calavala Cunnan Chetty Charities (1982) 135 ITR 485 (Mad) and DIT(E) vs. Framjee Cowasjee Institute,109 CTR(Bombay)463.However, the AO did accept the submissions of assessee and while relying upon the decision of the Hon’ble Apex Court in Escorts Ltd. vs. Union of India, 199 ITR 43(SC) disallowed the claim for depreciation while determining the income under the head ‘Profits and Gains of the Business or Profession’.

3. On appeal, the ld. CIT(A) relying upon the decision of ITAT, Delhi Bench in the case of Dr. R.L. Khera Charitable Trust and International Goudia Vedanta Trust, ITA No-2920/Del/2011 allowed the claim of the assessee.

4. The Revenue is now in appeal before us against the aforesaid findings of the ld.. CIT(A). The ld. DR while relying upon the decision dated 16.11.2011of the ITAT Cochin Bench in the case of DDIT(E) vs. Adi Sankara Trust,12 taxmann.com 105(Cochin) supported the order of the AO while the ld. AR on behalf of the assessee merely relied upon the findings in the impugned order.

5. We have heard both the parties and gone through the facts of the case. Indisputably, even though the assessee is registered u/s 12A of the Act, it did not claim benefit of provisions of sec. 11 & 12 of the Act in view of insertion of first proviso to section 2(15) of the Act introduced by the Finance Act, 2009 w.e.f 01.04.2009. The assessee itself determined income in the computation of income under the head ‘Profits and Gains of the Business or Profession’ and not in terms of provisions of sec. 11 & 12 of the Act. In the light of these undisputed facts, the issue before us is as to whether or not the assessee is entitled to depreciation u/s 32 of the Act, when the entire cost had already been claimed in the preceding years by way of application of income. Before proceeding further, we may have a look at the decisions relied upon by the assessee before the ld. CIT(A).First such decision is CIT V Rao Bahadur Calavala Cunnan Chetty Charities (1982) 135 ITR 485 (Mad),wherein it was held in the AYs 1965-66 & 1966-67 that the income from the properties held under trust would have to be arrived it in the normal commercial manner without reference to the provisions which are attracted by s. 14 of the Act. Following this decision, Hon’ble Karnataka High Court in Society of the Sisters of St. Anne (supra) in the AY 1997-78 held that if depreciation is not allowed as a necessary deduction for computing the income of a charitable institution then the corpus of the trust for deriving the income cannot be preserved and that the amount of depreciation debited to the account of a charitable institution is to be deducted to arrive at the income available for application to charitable and religious purposes. This decision was followed by the Hon’ble Madhya Pradesh High Court in Raipur Pallottine Society(supra) in the AY 1973-74. Similar view was taken by the Hon’ble Gujarat High Court in Seth Manilal Ranchhoddas Vishram Bhawan Trust(supra) in the AY 1971-72 & 1972-73,Framjee Cowasjee Institute(supra) and Institute of Banking(supra)in the AY 1984-85. Following the view taken by the Hon’ble Madras & Madhya Pradesh High Courts, Hon’ble Punjab & Haryana High Court held in Market Committee Pipli (supra) in the AY 2005-06 that the income of the assessee being exempt, the assessee is only claiming that depreciation should be reduced from the income for determining the percentage of funds which have to be applied for the purposes of the trust and that there is no double deduction claimed by the assessee. While relying upon the decisions in Dr. R.L. Khera Charitable Trust and International Goudia Vedanta Trust, ITA no.2920/Del/ 2011 in the AY 2008-09, following the decision of Hon’ble Punjab & Haryana High Court in the case of CIT vs M/s Tiny Tots Education Society ,330 ITR 21(P&H), the ld. CIT(A) allowed depreciation from the income of the trust for determining the percentage of funds which had to be applied for the purposes of the Trust. An analysis of these decisions reveals that in none of these decisions, the embargo stipulated in first proviso to section 2(15) of the Act ,has been considered nor even the ld. CIT(A) recorded his specific findings on the facts pointed out by the AO in the light of first proviso to sec. 2(15) of the Act even when the assessee itself did not claim benefit of provisions of sec. 11 & 12 of the Act in the computation of income

annexed with return as also filed report of audit in terms of provisions of sec. 44AB of the Act and declared income under the head‘Profits and Gains of the Business or Profession’. Hon’ble Delhi High court in the case of Institute of Chartered Accountants of India vs. DGIT(Exemptions),13taxmann.com175(Delhi) while examining the impact of aforesaid first  proviso to sec. 2(15) of the Act, observed as under:

“12. As the first proviso was introduced with effect from 1st April, 2009, the scope and ambit of the said proviso to section 2(15) of the Act has to be examined and considered. Earlier orders under section 10(23C)(iv) are not relevant and are inconsequential, as they have not examined the scope and ambit of the first proviso. The proviso applies only if an institution is engaged in advancement of any other object of general public utility and postulates that such an institute is not “charitable” if it is involved in carrying on any activity in the nature of trade, commerce or business or any activity of rendering any service in relation to any trade, commerce or business. The second part, “any activity of rendering any service in relation to any trade, commerce or business” obviously intends to expand the scope of the proviso to include services, which are rendered in relation to any trade, commerce or business. The proviso further stipulates that the activity must be for a cess or fee or any other consideration. The last part states that the proviso will apply even if the cess or fee or any other consideration is applied for a charitable activity/purpose. The proviso has to be given full effect to. Thus, even if cess, fee or consideration is used or utilized for charitable purposes, the proviso and the bar will apply. An institution will not be regarded as established for charitable purpose/activity under the last limb, if cess, fee or consideration is received for carrying on any activity in nature of trade, commerce or business or for any activity of rendering of any service in relation to any trade, commerce or business, even if the consideration or the money received is used in furtherance of the charitable purposes/activities. In view of the first proviso, the decisions that the application of money/profit is relevant for determining whether or not a person is carrying on charitable activity, are no longer relevant and apposite. Even if the profits earned are used for charitable purposes, but fee, cess or consideration is charged by a person for carrying on any activity in the nature of trade, commerce or business or any activity of rendering of any service in addition to any trade, commerce or business, it would be covered under the proviso and the bar/prohibition will apply.

5.1 In Escorts Limited’s case [1993] 199 ITR 43 (SC) referred to by the Cochin Bench in their aforesaid decision in Adi Sankara Trust(supra), the Hon’ble Supreme Court was dealing with a case relating to two deductions both under sections 10(2)(vi) and 10(2)(xiv) of the 1922 Act or both under sections 32(1)(ii) and 35(1)(iv) of the Act. The assessee therein had incurred expenditure of a capital nature on scientific research relating to the business which resulted into acquisition of an asset. The assessee sought to claim a specified percentage of the written down value of the asset as depreciation and at the same time claimed deduction, in five consecutive years of the expenditure incurred on the acquisition of the asset. The Hon’ble Apex court observed (headnote):

"Where a capital asset used for scientific research related to the business of the assessee is also ipso facto an asset used for the purpose of the business, it is impossible to conceive of the Legislature having envisaged a double deduction in respect of the same expenditure, one by way of depreciation under section 32 of the Income-tax Act, 1961 and other by way of allowance under section 35(1)(iv) of a part of the capital expenditure on scientific research, even though the two heads of deduction do not completely overlap and there is some difference in the rationale of the two deductions. . ."

It was further recorded that (headnote):

"There is a fundamental, though unwritten, axiom that no Legislature could have at all intended a double deduction in regard to the same business outgoing ; and, if it is intended, it will be clearly expressed. In other words, in the absence of clear statutory indication to the contrary, the statute should not be read so as to permit an assessee two deductions. . ."

6. In the light of view taken in the aforesaid decisions , a mere glance at the impugned order reveals that the ld. CIT(A) did not analyze the issues in proper perspective and merely followed decisions rendered prior to insertion of the aforesaid first proviso to sec. 2(15) of the Act, despite the undisputed fact that the assessee itself did not claim benefit of provisions of sec. 11 & 12 of the Act in the computation of income annexed with return, filed report of audit in form 3CD in terms of provisions of sec. 44AB of the Act and declared suo-motu income under the head ‘Profits and Gains of the Business or Profession’. Apparently, the order passed by the ld. CIT(A) is cryptic and grossly violative of one of the facets of the rules of natural just ice, namely, that every judicial/quasi- judicial body/authority must pass a reasoned order , which should ref lect applicat ion of mind by the concerned authority to the issues/points raised before it . The applicat ion of mind to the material facts and the arguments should manifest itself in the order. Sect ion 250(6) of the Act mandates that the order of the CIT(A) while disposing of the appeal shall be in wr it ing and shall state the points for determinat ion, the decision thereon and the reasons for the

decision. The requirement of recording of reasons and communicat ion thereof by the quasi -judicial author it ies has been read as an integral part of the concept of fair procedure and is an important safeguard to ensure observance of the rule of law. I t introduces clar ity, checks the int roduct ion of ext raneous or ir relevant considerat ions and minimizes arbit rar iness in the decision-making process. Hon’ble jurisdictional High Court in their decision in Vodafone Essar Ltd. Vs. DRP,196 Taxman423(Delhi) held that when a quasi judicial authority deals with a lis, it is obligatory on its part to ascribe cogent and germane reasons as the same is the heart and soul of the matter and further, the same also facilitates appreciation when the order is called in question before the superior forum. We may point out that a ‘decision’ does not merely mean the ‘conclusion’. It embraces within its fold the reasons forming basis for the conclusion. [Mukht iar Singh Vs. State of Punjab,(1995)1SCC 760(SC)] .As already observed, the impugned order suffers from lack of reasoning and is not a speaking order on any of the issue involved in this appeal. In view of the foregoing, we consider it fair and appropriate to set aside the order of the ld. CIT(A) and restore the matter to his file for deciding the aforesaid issues, afresh in accordance with law, in the light of our aforesaid observations, after allowing sufficient opportunity to both the parties. Needless to say that while re-deciding the appeal, the ld. CIT(A) shall pass a speaking order, keeping in mind, inter alia, the mandate of provisions of sec. 250(6) of the Act , bringing out clearly the impact of first proviso to sec. 2(15) of the Act even when the assessee itself did not claim benefit of provisions of sec. 11 & 12 of the Act in the computation of income annexed with return, filed report of audit in form 3CD in terms of provisions of sec. 44BB of the Act and declared income under the head ‘Profits and Gains of the Business or Profession’. With these observations, ground no. 1 in the appeal is disposed of.

7. No additional ground having been raised before us in terms of residuary ground no.2 in the appeal, accordingly, this ground is dismissed.

8. No other plea or argument was made before us.

9. In the result, appeal is allowed but for statistical purposes.

                                                        Sd/-                             Sd/-

                                              (R.K.GUPTA)            (A.N.PAHUJA)

                                     JUDICIAL MEMBER   ACCOUNTANT MEMBER

*Amit Kumar*

Copy forwarded to:

1. Assessee

2. ADIT(E), Inv. Trust Circle -I, New Delhi

3. DlT(Exemptions),New Delhi

4. CIT(Appeals)-XXI, New Delhi

5. DR: ITAT,’A’ Bench,New Delhi

6. Guard File

ASSISTANT REGISTRAR

ITAT, NEW DELHI