1 13.ITXA.146-13.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rt INCOME TAX APPEAL NO.146 OF 2013 ou Director of Income Tax (Exemption) ..Appellant Versus National Health and Education Society ..Respondent C .... Mr. A.R. Malhotra a/w. Mr. N.A. Kazi, for Appellant. Mr. S.C. Tiwari a/w. Ms. Natasha Mangat, for Respondent. .... h CORAM : S.C. DHARMADHIKARI & S.P DESHMUKH, JJ. . ig DATE : JANUARY 08, 2015 P.C. H 1. We have heard Mr. Malhotra in support of this Appeal which challenges order passed by Income Tax Appellate y Tribunal dated 6th July, 2012 in Income Tax Appeal No.5591 of ba 2011. Assessment Year in question is 2007-08. 2. Mr. Malhotra submits that two questions and om formulated at paras-6(a) and (b), at page-7 of paper book, are substantial questions of law. That arises out of ground No.2 B in memorandum of Appeal before Income Tax Appellate Tribunal. 3. Mr. Malhotra submits that grounds No. 2 and 3 in memo of Appeal before Tribunal raise challenge to Deshmane, (P.S.) 1 of 5 ::: Downloaded on - 17/08/2015 15:58:38 ::: 2 13.ITXA.146-13.doc order of Commissioner of Income Tax (Appeals) dated 6 th rt April, 2011. Commissioner had before him two grounds as referred to in para-6 of order passed by Tribunal and ou impugned before us. ground No.1 was omitted from consideration by Tribunal because Commissioner held C that same is treated as infructuous. 4. ground No.2 was that Commissioner should not h have allowed Appeal of respondent Assessee particularly ig regarding computation of deficit of Rs.21,62,87,678/-. argument was that Sections 11 to 13 of Income Tax Act, 1961 H are complete Code. There is nothing in these provisions and elsewhere in Income Tax Act which permits exercise y directed by Commissioner. In other words, argument was ba that income from current year is to be applied to objects of Trust and deficit cannot be allowed to be om carried forward to subsequent years. There is no provision in Act to carry forward deficit where expenditure, which B causes deficit, exceeds income. 5. Tribunal found that this very argument was raised and duly considered by Division Bench of this Court in case of Commissioner of Income Tax Vs. Institute of Banking Deshmane, (P.S.) 2 of 5 ::: Downloaded on - 17/08/2015 15:58:38 ::: 3 13.ITXA.146-13.doc Personnel Selection, reported in (2003) 264 ITR 110. rt Therefore, Commissioner did not commit any error in directing Assessing Officer to allow claim of Assessee ou if made through its computation of income. 6. only reason assigned by Tribunal in para-9 is C assailed before us by Mr.Malhotra and he contends that this Court has admitted Income Tax Appeal No.1413 of 2012 on h 5th March, 2014. That admits similar question. Thus, ig correctness of view taken in case of Institute of Banking H Personnel Selection(supra) is in issue before this Court. Therefore, this Appeal deserves to be admitted. 7. We are unable to agree with Mr. Malhotra and for more y than one reason. Firstly, ground which Assessee raised in ba Appeal before first Appellate Authority regarding carry forward or computation of deficit was not discussed om before Assessing Officer. Assessing Officer made no observations regarding same. Yet when same was raised B before Commissioner, Commissioner observed that looking to facts of case as well as submissions of Assessee, claim deserves to be considered and duly allowed in light of this Division Bench judgment. To this course Deshmane, (P.S.) 3 of 5 ::: Downloaded on - 17/08/2015 15:58:38 ::: 4 13.ITXA.146-13.doc adopted by Commissioner, Revenue did not object. rt Secondly, Revenue also did not urge before Commissioner that since Assessing Officer has not discussed ou this ground or claim in Assessment Order matter be sent back to him for due consideration and in accordance with law. C Assessee was allowed to raise ground, argue it fully and rely upon Division Bench judgment of this Court. h Commissioner, therefore, duly noted this judgment, followed and ig applied it because facts and circumstances were identical. Para-4.6 of Commissioner's order contains this line of H reasoning. 8. When matter was carried by Revenue to y Tribunal, Tribunal dealt with this argument of Revenue in ba Paras-7 & 8, and eventually in para-9 held that if Commissioner followed and applied Division Bench judgment om of this Court which was rendered in identical facts and circumstances then his order deserves to be upheld. B 9. In above circumstances, we refrain from entertaining ground or issue raised before us by Mr.Malhotra, particularly about correctness of judgment of this Court in case of Institute of Banking Personnel Deshmane, (P.S.) 4 of 5 ::: Downloaded on - 17/08/2015 15:58:38 ::: 5 13.ITXA.146-13.doc Selection(supra) merely because in another Appeal such rt question is admitted and at instance of distinct Assessee does not mean that we are obliged to admit this Appeal as well. If ou judgment of Division Bench of this Court has to be reexamined and reconsidered, it would be done in appropriate C case. 10. In facts and circumstances of present case, we h do not find that Tribunal misdirected itself in law in upholding conclusion ig of Commissioner. Commissioner as well allowed ground to be raised by H Assessee because all facts and circumstances in relation to said ground were before him. He held that no prejudice y would be caused if parties were allowed to argue this ground. ba All this being conceded and consented to by Revenue, it can hardly now complain. om 11. In circumstances, we do not think that present Appeal raises any substantial question of law. It is dismissed. B No costs. (S.P DESHMUKH, J.) . (S.C. DHARMADHIKARI,J.) Deshmane, (P.S.) 5 of 5 ::: Downloaded on - 17/08/2015 15:58:38 ::: Director of Income-tax (Exemption) v. National Health and Education Society