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Judgment
By way of this appeal, the appellant has challenged the
judgment and order of the Income Tax Appellate Tribunal, Jodhpur
Bench, Jodhpur whereby the Tribunal has dismissed the appeal of
the Department confirming the order of the Commissioner of
Income Tax (Appeals), Udaipur.
Learned counsel for the appellant has framed following
questions of law:
"1. Whether on the facts and circumstances of the case and in law the learned ITAT is legally correct in holding that the assessee is eligible to claim deduction of depreciation of Rs.89,19,876/- on the assets which were claimed as application u/s 11 at the time of purchase? 2. Whether on the facts and circumstances of the case and in law the learned ITAT is justified in allowing the depreciation without appreciating the fact that the application of 100% expenditure of the capital asset is already allowed as capital expenditure hence further allowance of the depreciation on the same capital asset would amount to double allowance? 3. Whether on the facts and circumstances of the case and in law the learned ITAT is justified in allowing the depreciation without appreciating the fact that the assessee has not carried out the business activities but the receipts utilized for charity. As there was not business, the claim of deprecation was not allowable, the depreciation is allowable only in the case of business or profession or in case of "income from other sources"? 4. That in view of the substantial legal question of law involved in the case, as well as the tax effect Rs.27,56,241/- (Notional) which is much more than the limit specified by the Board, further appeal u/s 260 A of the Act 1961, is preferred?"
The questions of law raised by the learned counsel for the
appellant have already been decided against the appellant by this
Court as also three different High Courts of Gujarat, Madras &
Bombay. On being asked, learned counsel for the appellant could
not cite any decision of the other High Court in his favour.
However, SLP against judgment of this Court particularly in the
case of Commissioner of Income Tax (Exemptions), Jaipur
vs. Vijaya Shanti Education Trust [(2016) 75 Taxmann.com
124 (SC)] is pending adjudication before the Supreme Court and
the order dated 03.10.2016 passed therein is reproduced
hereunder:
"1. Delay condoned. 2. Leave granted. 3. to be heard along with Civil Appeal No.7173 of 2016."
In view of the fact that the aforesaid three different High
Courts including this Court has taken the same view against the
appellant, no question of law arises in this appeal. However,
ultimately if the matter is decided in favour of the Department by
the Supreme Court, it will be open for the Department to follow
the same.
The appeal is dismissed accordingly.