ITXA.248.2013.10.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 248 OF 2013 Director of Income Tax (Exemptions) Appellant versus M/s. Anjuman E. Mohammedi Trust Respondent Mr. A. R. Malhotra with Mr. N. A. Kazi for Appellant. Mr. Firoze B. Andhyarujina Senior Advocate with Mr. Maneck F. Andhyarujina i/b. Mr. Sameer G. Dalal for Respondent. CORAM : S.C.DHARMADHIKARI & S.P.DESHMUKH, JJ. DATED : JANUARY 9, 2015 P.C. : We have heard Mr. Malhotra in support of this Appeal, Which challenges order passed by Income Tax Appellate Tribunal dated 24th February, 2012 in Income Tax Appeal No.3248/Mum/2011. assessment year in question is 2007 08. 2) Mr. Malhotra appearing for Revenue submits that two questions and formulated at paras 6.1 and 6.2, at pages 7 and 8 of paper book, are substantial questions of law. Those arise out of ground No. 2 in Memorandum of Appeal before Income Tax Appellate Tribunal. Page 1 of 5 J.V.Salunke,PA Uploaded on - 15/01/2015 Downloaded on - 13/04/2020 12:16:31 ITXA.248.2013.10.doc 3) Mr. Malhotra submits that ground Nos. 2 and 3 in Memo of Appeal before Tribunal raise challenge to order of Commissioner of Income Tax (Appeals) dated 9 th November, 2010. Commissioner had before him ground of Appeal, namely Income Tax Officer has erred in assessing total income as Nil instead of deficit/losses of Rs.5,65,88,990/ claimed by Appellant which will be carried forward. argument was that sections 11 to 13 of Income Tax Act, 1961 are complete Code. There is nothing in these provisions and elsewhere in Income Tax Act which permits exercise directed by Commissioner. In other words, argument was that income from current year is to be applied to objects of Trust and deficit cannot be allowed to be carried forward to subsequent years. There is no provision in Act to carry forward deficit where expenditure, which causes deficit, exceeds income. 4) 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 Personnel Selection, reported in (2003) 264 ITR 110. Therefore, Commissioner did not commit any error in directing Assessing Officer to allow claim of Assessee if made through its computation of income. Page 2 of 5 J.V.Salunke,PA Uploaded on - 15/01/2015 Downloaded on - 13/04/2020 12:16:31 ITXA.248.2013.10.doc 5) only reason assigned by Tribunal in para 4 is assailed before us by Mr. Malhotra and he contends that this Court has admitted Income Tax Appeal No. 1413 of 2012 on 5th March, 2014. That admits similar question. Thus, correctness of view taken in case of Institute of Banking Personnel Selection (supra) is in issue before this Court. Therefore, this Appeal deserves to be admitted. 6) We are unable to agree with Mr. Malhotra and for more than one reason. Firstly, ground which Assessee raised in Appeal before first Appellate Authority regarding carry forward or computation of deficit was not discussed before Assessing Officer. Assessing Officer made no observation regarding same. Yet, when same was raised 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 Division Bench Judgment. To this course, adopted by Commissioner, Revenue did not object. Secondly, Revenue also did not urge before Commissioner that since Assessing Officer has not discussed this ground or claim in assessment order, matter be sent back to him for due consideration and in accordance with law. Assessee was allowed to raise ground, argue it fully and rely upon Division Bench Judgment of this Page 3 of 5 J.V.Salunke,PA Uploaded on - 15/01/2015 Downloaded on - 13/04/2020 12:16:31 ITXA.248.2013.10.doc Court. Commissioner, therefore, duly noted this Judgment, followed and applied it because facts and circumstances were identical. Para 4.4 of Commissioner's order contains this line of reasoning. 7) When matter was carried by Revenue to Tribunal, Tribunal dealt with this argument of Revenue in paras 4 and 5 and held that if Commissioner followed and applied Division Bench Judgment of this Court which was rendered in identical facts and circumstances, then, his order deserves to be upheld. 8) 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 Selection (supra). Merely because in another Appeal such question is admitted and at instance of distinct Assessee does not mean that we are obliged to admit this Appeal as well. If Judgment of Division Bench of this Court has to be reexamined and reconsidered, it would be done in appropriate case. 9) In facts and circumstances of present case, we do not find that Tribunal misdirected itself in law in upholding conclusion of Commissioner. Commissioner as well allowed Page 4 of 5 J.V.Salunke,PA Uploaded on - 15/01/2015 Downloaded on - 13/04/2020 12:16:31 ITXA.248.2013.10.doc ground to be raised by Assessee because all facts and circumstances in relation to said ground were before him. He held that no prejudice would be caused if parties were allowed to argue this ground. All this being conceded and consented to by Revenue, it can hardly now complain. 10) In circumstances, we do not think that present Appeal raises any substantial question of law. It is dismissed. No costs. (S.P.DESHMUKH, J.) (S.C.DHARMADHIKARI, J.) Page 5 of 5 J.V.Salunke,PA Uploaded on - 15/01/2015 Downloaded on - 13/04/2020 12:16:31 Director of Income-tax (Exemptions) v. Anjuman E. Mohammedi Trust