Indian Kanoon - Search engine for Indian Law

By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeals of the department as well as the assessee for statistical purposes.

Counsel for the appellant framed the following substantial questions of law:-

In DBITA No. 337/2017 & 339/2017 "1. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in allowing the appeal of the assessee by ignoring the fact that assessees like charitable for religious institutions are governed by almost the separate or independent provisions of Section 11, 12, 12A, 12AA & 13 and these provisions are independent code in itself in Chapter III of the Income Tax Act, 1961 and claim of depreciation u/s 32 comes under Chapter IV of the Act under the u/s 32 comes under Chapter IV of the Act under the head 'D' - Profit and Gains of Business or Profession and depreciation is allowed when capital assets are used for the purpose of business?

2. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in allowing the appeal of the assessee by ignoring the fact that in case of charitable or religious institutions, (3 of 5) [ ITA-337/2017] the assessee is not eligible for any type of depreciation as the entire expenditure for the purchase of capital assets is allowed as a deduction and the same is treated as application of income u/s 11(1) and claiming depreciation on the same capital assets tantamount to double deduction and is not as per law as these capital assets are not used for the purpose of business or profession as provided u/s 32(1)?

3. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in holding that both depreciation and application of income are to be considered separately to determine the correct income without appreciating that the same tantamounts to double deduction which is not correct as per relevant provisions of the I. T. Act?

4. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in dismissing the appeal filed by the revenue on the issue of disallowance of depreciation placing reliance on their own decision without appreciating the fact that the Hon'ble Supreme Court in the case of Escorts Ltd. & another vs. Union of India (199 ITR 43), while dealing with the issue of allowance of expenditure on scientific research u/s 35(1)(iv)[corresponding to section 10(2)(xiv) of the IT Act, 1992] held that any expenditure of a capital nature (or incurred towards purchase of capital assets) on scientific research allowed as deduction u/s 35(1)(iv) cannot be allowed once again as deduction in the form of depreciation on such capital assets?"

3. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in holding that both depreciation and application of income are to be considered separately to determine the correct income without appreciating that the same tantamounts to double deduction which is not correct as per relevant provisions of the I. T. Act?

4. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in dismissing the appeal filed by the revenue on the issue of disallowance of depreciation placing reliance on their own decision without appreciating the fact that the Hon'ble Supreme Court in the case of Escorts Ltd. & another vs. Union of India (199 ITR 43), while dealing with the issue of allowance of expenditure on scientific research u/s 35(1)(iv)[corresponding to section 10(2)(xiv) of the IT Act, 1992] held that any expenditure of a capital nature (or incurred towards purchase of capital assets) on scientific research allowed as deduction u/s 35(1)(iv) cannot be allowed once again as deduction in the form of depreciation on such capital assets?