M/s. DAWAT INSTITUTE OF DAWOODI BOHRA COMMUNITY, MUMBAI v. ITO (E) Rg. 1(1), MUMBAI

ITA 4309/MUM/2005 | 2001-2002
Pronouncement Date: 31-10-2013 | Result: Dismissed

Appeal Details

RSA Number 430919914 RSA 2005
Bench Mumbai
Appeal Number ITA 4309/MUM/2005
Duration Of Justice 8 year(s) 4 month(s) 21 day(s)
Appellant M/s. DAWAT INSTITUTE OF DAWOODI BOHRA COMMUNITY, MUMBAI
Respondent ITO (E) Rg. 1(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 30-05-2013
Date Of Final Hearing 23-04-2013
Next Hearing Date 23-04-2013
Assessment Year 2001-2002
Appeal Filed On 09-06-2005
Judgment Text
ITA NO.4309/MUM/2005 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL 'G' BENCH MUMBAI BEFORE SHRI RAJENDRA SINGH ACCOUNTANT MEMBER AND SHRI VIVEK VARMA JUDICIAL MEMBER ITA NO. 4309/MUM/2005 (ASSESSMENT YEAR: 2001-02) D DATE OF HEARING: 23 /4/2013 DATE OF PRONOUNCEMENT: 30 /0/2013 O R D E R PER RAJENDRA SINGH A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 4.2.2005 OF CIT(A) FOR THE ASSESSMENT YEAR 2001-02. THE ONLY DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL IS REGARDING ALLOWABILITY OF STATUTORY ACCUMULATION OF INCOME AT THE RATE OF 25% OF GROSS TOTAL INCOME BY THE ASSESSEE. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE TRUST WHIC H WAS REGISTERED U/S 12A OF THE IT ACT HAD SHOWN INCOME FROM VOLUNTA RY CONTRIBUTIONS AT RS. 316013264/-. THE ASSESSEE HAD ALSO RECEIVED INCOME FROM HOUSE DAWAT INSTITUTE OF DAWOODI BOHRA COMMUNITY THROUGH HIS HOLINESS DR. SYEDNA MOHAMMED BURHANUDDIN SAHEB BADRI MAHAL DR. D.N. ROAD FORT MUMABI 400 001. INCOME TAX OFFICER (E) RANGE 1(1) MUMBAI PIRAMAL CHMBERS MORARJI MILL COMPOUND LALBUG PAREL MUMBAI -400 012. APPELLANT RESPONDENT DEPARTMENT BY. SHRI PAVAN VED ASSESSEE BY: SHRI F.B. ANDHYARUJINA ITA NO.4309/MUM/2005 PAGE 2 OF 9 PROPERTY OF RS. 58208560 AND AFTER DEDUCTING EXPENS ES OF RS. 1 97 62 715/- NET INCOME FROM HOUSE PROPERTY HAD B EEN SHOWN AS RS. 3 94 45 845/- THE ASSESSEE HAD ALSO RECEIVED MISCE LLANEOUS INCOME OF RS. 5 62 992/-. THE TOTAL INCOME RECEIVED WAS THEN RS. 35 60 82 101/- AGAINST WHICH THE ASSESSEE HAD INCURRED EXPENSES ON THE OBJECTS OF TRUST AT RS. 34 27 58 555/-. THE ASSESSEE HAD ALSO INCURRED CAPITAL EXPENDITURE OF RS. 28904532 TOWARDS THE OBJECTS OF TRUST WHICH HAD BEEN TREATED BY THE AO AS APPLICATION OF INCOME. TH E NET INCOME OF THE TRUST WAS THEREFORE COMPUTED BY ASSESSING OFFICER AT NIL. THE ASSESSEE HAD ALSO CLAIMED DEPRECIATION OF RS. 36442731 IN RE SPECT OF THE HOUSE PROPERTY WHICH WAS NOT ALLOWED BY THE ASSESSING OFF ICER ON THE GROUND THAT INCOME FROM IMMOVABLE PROPERTIES HAD BEEN CLAI MED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THERE WAS NO PROVISION FOR ALLOWING DEPRECIATION U/S 11 OF THE IT ACT. THE ASS ESSING OFFICER THUS REJECTED THE CLAIM OF DEPRECIATION AND COMPUTED THE ASSESSMENT AT NIL INCOME AS APPLICATION OF INCOME INCLUDING THE CAPIT AL EXPENDITURE WAS MORE THAN THE INCOME EARNED. 3. THE ASSESSEE DISPUTED THE DECISION OF AO AND SUBMIT TED BEFORE CIT (A) THAT THE ASSESSEE WAS A WELL ESTABLISHED RE LIGIOUS AND CHARTABLE TRUST FOR THE BENEFIT OF DAWOODI BOHRA COMMUNITY. I T WAS ARGUED THAT THE AO HAD NOT ALLOWED THE STATUTORY ACCUMULATION O F 25% OF THE GROSS INCOME WHICH WAS REQUIRED TO BE CARRIED FORWARD FOR APPLICATION IN THE SUBSEQUENT YEAR U/S 11(1) A OF THE IT ACT. CIT ( (A ) DID NOT ACCEPT THE CONTENTIONS RAISED. IT WAS OBSERVED BY HIM THAT UND ER THE PROVISIONS OF SECTION 11(1) (A) THE ASSESSEE IS ENTITLED TO ACCU MULATE 25% OF THE INCOME AND THEREFORE EVEN IF THE ASSESSEE HAD SPENT ONLY 75% OF THE INCOME THE ENTIRE INCOME WOULD BE EXEMPT. BUT IN T HIS CASE THE ASSESSEE HAD TOTAL INCOME OF RS. 35 60 82 101/- AGA INST WHICH IT HAD APPLIED INCOME AMOUNTING TO RS. 58 09 87 048/- WHIC H WAS MORE THAN TOTAL INCOME. THEREFORE THERE WAS NO INCOME LEFT W HICH COULD BE ACCUMULATED. IN FACT THERE WAS DEFICIT AND THEREFO RE CIT (A) HELD THAT ITA NO.4309/MUM/2005 PAGE 3 OF 9 THE CLAIM OF THE ASSESSEE WAS NOT PERMISSIBLE IN LA W AND THEREFORE THE CLAIM WAS REJECTED BY HIM AGGRIEVED BY WHICH THE A SSESSEE IS IN APPEAL BEFORE TRIBUNAL. 4. BEFORE US THE LEARNED AR FOR ASSESSEE SUBMITTED TH AT THE LEGAL POSITION WAS SETTLED BY THE JUDGMENT OF HONBLE SUP REME COURT IN CASE OF CIT VS PRGORAMME FOR COMMUNITY ORGANIZATION (248 ITR 01) IN WHICH IT HAS BEEN HELD THAT THE ASSESSEE TRUST IS E NTITLED TO ACCUMULATION AT THE RATE OF 25% OF GROSS INCOME AND NOT NET INCOME. THEREFORE IT WAS ARGUED THAT EVEN IF THE ENTIRE IN COME HAD BEEN APPLIED OR THE INCOME APPLIED EXCEEDED THE INCOME EARNED T HE STATUTORY ACCUMULATION OF THE 25% OF THE GROSS INCOME WAS REQ UIRED TO BE ALLOWED TO THE ASSESSEE. IT WAS ALSO SUBMITTED THAT SUCH ST ATUTORY ACCUMULATION ALLOWABLE TO THE ASSESSEE WAS ABSOLUTE AND UNFETTER ED AS HELD BY HONBLE SUPREME COURT IN CASE OF CIT VS. ALN RAO CH ARITABLE TRUST (129 ITR 20J). REFERENCE WAS ALSO MADE TO THE JUDGM ENT OF HONBLE HIGH COURT OF BOMBAY IN CASE OF CIT VS TRUSTEES OF BHAT FAMILY RESEARCH FOUNDATION ( 185 ITR 532) FOR THE PROPOSITION THAT STATUTORY ACCUMULATION OF 25% U/S 11(1)(A) WAS UNQUALIFIED AN D UNCONDITIONAL. THE LEARNED AR FURTHER SUBMITTED THAT SUCH ACCUMULA TION OF 25% OF THE GROSS INCOME HAS BEEN ALLOWED BY THE TRIBUNAL IN AS SESSEES OWN CASE IN ASSESSMENT YEAR 2005-06 IN ITA NO. 1588/MUM/2000 . THE SAID DECISION OF TRIBUNAL WAS FOLLOWED IN ASSESSEES OWN CASE IN ASSESSMENT YEARS 97-98 AND 98-99 IN ITA NOS. 345 & 346/MUM/200 1 AND ALSO IN THE ASSESSMENT YEARS 2002-03 & 2003-04 IN ITA NOS. 3008- 3009/MUM/2006. IT WAS FURTHER SUBMITTED BY THE LEAR NED AR THAT CLAIM HAD ALSO BEEN ALLOWED BY CIT (A) IN THE ORDER DATED 22-9-2008 IN THE ASSESSMENT YEAR 2004-05 FOLLOWING THE DECISION OF TRIBUNAL IN ASSESSMENT YEARS 97-98 AND 98-99 (SUPRA) AND THE J UDGMENT OF HONBLE SUPREME COURT IN CASE OF CIT VS. PROGRAMME FOR COMMUNITY ORGANISATION (SUPRA) AND THE REVENUE HAD NOT FILED APPEAL AGAINST THE ITA NO.4309/MUM/2005 PAGE 4 OF 9 SAID ORDER OF TRIBUNAL. IT WAS THEREFORE URGED TH AT THE CLAIM OF THE ASSESSEE SHOULD BE ALLOWED. 4.1 THE LEARNED CIT (DR) APPEARING FOR THE REVENUE ON THE OTHER HAND ARGUED THAT THE ASSESSEE COULD BE ALLOWED ACCU MULATION AT THE SPECIFIED RATE ONLY FROM THE INCOME EARNED AND IN C ASE THE ENTIRE INCOME HAD ALREADY BEEN APPLIED THERE WAS NO QUEST ION OF ACCUMULATION. IT WAS ALSO SUBMITTED THAT THE JUDGME NTS CITED BY THE LEARNED AR WERE NOT APPLICABLE TO THE ISSUE UNDER R EFERENCE. THE LEARNED CIT (DR) FURTHER SUBMITTED THAT THE ASSESSE E TRUST WAS ALSO NOT ENTITLED TO DEPRECIATION ON THE PROPERTY AS THE EXP ENDITURE ON THE PROPERTY HAD ALREADY BEEN CONSIDERED AS APPLICATION OF INCOME AND THEREFORE ALLOWING DEPRECIATION WOULD AMOUNT TO DO UBLE DEDUCTION WHICH WAS NOT PERMISSIBLE IN VIEW OF THE JUDGMENT O F HONBLE SUPREME COURT IN CASE OF ESCORT LTD. AND ANOTHER & UNIONS O F INDIA (199 TTR 43). 5. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE RIVA L CONTENTIONS CAREFULLY. THE DISPUTE RAISED IN THIS APPEAL IS WHE THER THE ASSESSEE CAN STILL BE ALLOWED STATUTORY ACCUMULATION OF 25% OF T HE INCOME U/S 11 (1)(A) OF THE IT ACT EVEN IF THE ENTIRE INCOME HAS BEEN APPLIED FOR THE YEAR AND NO INCOME IS LEFT FOR ACCUMULATION. THE AU THORITIES BELOW HAVE DISALLOWED THE CLAIM ON THE GROUND THAT THE ASSESSE E HAD INCURRED MORE EXPENDITURE TOWARDS THE APPLICATION OF INCOME THAN THE INCOME EARNED. THEREFORE THE CLAIM OF ACCUMULATION CANNOT BE ALLO WED. THE LEARNED AR FOR THE ASSESSEE HAS HOWEVER ARGUED THAT THE ASSESS EE IS ENTITLED FOR STATUTORY ACCUMULATION OF 25% OF GROSS INCOME IRRES PECTIVE OF THE FACT WHETHER ANY INCOME IS LEFT FOR APPLICATION OR NOT. RELIANCE HAS BEEN PLACED ON THE JUDGMENTS OF THE JURISDICTIONAL HIGH AND THE SUPREME COURT AS WELL AS THE DECISION OF COORDINATE BENCH O F TRIBUNAL IN ASSESSEES OWN CASE. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENTS ITA NO.4309/MUM/2005 PAGE 5 OF 9 CITED. IN CASE OF CIT VS. PROGRAMME FOR COMMUNITY O RGANIZATION (SUPRA) THE ISSUE BEFORE THE HONBLE SUPREME COUR T WAS WHETHER ACCUMULATION U/S 11(1)(A) HAS TO BE COMPUTED ON GR OSS INCOME OR THE NET INCOME. IN THAT CASE INCOME RECEIVED BY THE TRU ST WAS RS. 2 57 376/- AGAINST WHICH A SUM OF RS. 170369/- HAD BEEN APPLIED DURING THE YEAR LEAVING A BALANCE OF RS. 87 013/-. THE ISSUE WAS WHETHER PERCENTAGE OF ACCUMULATION SHOULD BE COMPUT ED WITH RESPECT TO THE GROSS INCOME OF RS. 2 57 376/- OR THE NET IN COME OF RS. 87 016/-. THE HONBLE SUPREME COURT HELD THAT ACCUMULATION HA D TO BE COMPUTED WITH RESPECT TO GROSS INCOME. THERE WAS NO ISSUE BEFORE THE HONBLE SUPREME COURT AS TO WHETHER ACCUMULATION HA D TO BE ALLOWED OR NOT EVEN IF THE ENTIRE INCOME HAD BEEN APPLIED A ND NOTHING HAD BEEN LEFT DURING THE YEAR. 5.1 THE LEARNED AR FOR THE ASSESSEE HAS ARGUED THAT ACCUMULATION U/S 11(1)(A) WAS ABSOLUTE AND UNFETTERED IRRESPECTI VE OF THE FACT WHETHER SOME INCOME WAS LEFT FOR APPLICATION OR NOT . RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF HONBLE SUPREME COURT IN CASE OF ADDITIONAL CIT VS. ALN RAO CHARITABLE TRUST (SUPRA) AND ON THE JUDGMENT OF HONBLE HIGH COURT OF BOMBAY IN CASE OF CIT VS. TRU STEES OF BHAT FAMILY RESEARCH FOUNDATION (SUPRA). WE HAVE CAREFUL LY PERUSED THE SAID JUDGMENTS BUT DO NOT FOUND ANY RULING TO THE E FFECT THAT ACCUMULATION U/S 11 (1) (A) HAS TO BE ALLOWED EVEN IF THE ENTIRE INCOME HAS ALREADY BEEN APPLIED DURING THE YEAR. IN CASE O F ADDITIONAL CIT VS. ALN RAO CHARITABLE TRUST (SUPRA) THE ISSUE WAS WHET HER CONDITIONS PRESCRIBED U/S 11(2) HAVE TO BE FULFILLED EVEN IN R ESPECT OF ACCUMULATION MENTIONED IN SECTION 11 (1) (A). HONBLE SUPREME C OURT OBSERVED THAT IF THE ENTIRE INCOME WAS SPENT ON CHARITABLE PURPOSES THEN IT WILL NEVER TAXABLE BUT IN CASE THERE WAS SAVING 25% OR TEN TH OUSAND WHICHEVER WAS MORE COULD NOT BE INCLUDED IN THE TOTAL INCOME . HONBLE SUPREME COURT ALSO OBSERVED THAT SECTION 11(2) FURTHER ENLA RGED AND LIBERALIZED THE EXEMPTION. THE SECTION 11(2) WAS PRESSED INTO S ERVICE IF THERE WAS ITA NO.4309/MUM/2005 PAGE 6 OF 9 STILL SOME ACCUMULATED INCOME LEFT TO BE DEALT WITH I.E. BEYOND 25% OR TEN THOUSAND WHICHEVER WAS MORE. THIS ADDITIONAL IN COME COULD BE ACCUMULATED U/S 11(2) SUBJECT TO THE FULFILLMENT OF CONDITIONS MENTIONED THERE IN. BUT IN RESPECT OF ACCUMULATION OF 25% OR 10 THOUSAND WHICHEVER IS MORE U/S 11(1)(A) THE CONDIT IONS MENTIONED U/S 11(2) COULD NOT BE APPLIED. IN OTHER WORDS HONBLE SUPREME COURT HELD THAT ACCUMULATION OF 25% OR 10 THOUSAND WHICHEVER W AS MORE WAS ABSOLUTE AND UNFETTERED WITHOUT ANY CONDITIONS. THU S OBSERVATIONS ABSOLUTE AND UNFETTERED EXEMPTION WAS ONLY IN REL ATION TO FULFILLMENT OF CONDITIONS MENTIONED IN SECTION 11(2). IT WAS NO T HELD BY THE HONBLE SUPREME COURT THAT SUCH ACCUMULATION HAD TO BE ALLO WED EVEN IF THERE WAS NO INCOME LEFT FOR APPLICATION. 5.2 SIMILAR WAS THE POSITION IN CASE OF CIT VS. TRU STEES OF BHAT FAMILY RESEARCH FOUNDATION (SUPRA) IN WHICH THE FO UNDATION HAD EARNED INCOME OF RS. 41 513/- AGAINST WHICH IT HAD APPLIED THE SUM OF RS. 8 150/- LEAVING A BALANCE OF RS. 33 363/-. THE ASSESSING OFFICER HELD THAT FOR ALLOWING EXEMPTION THE ENTIRE BALANC E AMOUNT OF RS. 33363/- HAS TO BE INVESTED IN GOVERNMENT SECURITIES AND BONDS AS PROVIDED IN SECTION 11(2). THE HIGH COURT HELD THAT THE CONDITIONS OF INVESTMENT IN GOVERNMENT SECURITIES AND BONDS WAS O NLY IN RELATION TO ANY ACCUMULATION BEYOND THE ACCUMULATION OF 25% OR 10 THOUSAND WHICHEVER WAS MORE AS PROVIDED IN SECTION 11(1)(A). IT WAS THUS HELD THAT IN SO FAR AS ACCUMULATION OF 25% OF INCOME I.E . RS. 10 378/- WAS CONCERNED CONDITIONS FOR INVESTMENT IN GOVERNMENT SECURITIES WERE NOT REQUIRED TO BE FULFILLED AS THIS EXEMPTION WAS UNQU ALIFIED AND UNCONDITIONAL. THE CONDITIONS WERE ONLY IN RESPECT OF FURTHER ACCUMULATION OF BALANCE AMOUNT I.E. THE SUM OF RS. 22 900/- (33363-10378). THUS EVEN IN THIS CASE THERE WAS NO RULING THAT ACCUMULATION U/S 11(1)(A) HAS TO BE ALLOWED TO THE ASSESSEE EVEN IF THERE WAS NO INCOME LEFT FOR ACCUMULATION AND ENTIR E INCOME HAD ALREADY BEEN APPLIED. ITA NO.4309/MUM/2005 PAGE 7 OF 9 5.3 AS REGARDS THE DECISIONS OF TRIBUNAL IN ASSESS EES OWN CASE WE FIND THAT IN ASSESSMENT YEAR 2005-06 THE TRIBUNAL IN ITA NO 1588/MUM/2000 IN ASSESSEES OWN CASE ALLOWED THE CL AIM OF THE APPLICATION WITH RESPECT TO GROSS INCOME EVEN WHEN THERE WAS NO INCOME LEFT FOR APPLICATION FOLLOWING THE DECISION OF SPECIAL BENCH OF TRIBUNAL IN CASE OF BAI SONABAI HIRJI TRUST VS. ITO (85 TTJ 907). THE TRIBUNAL HAD NOT DISCUSSED THE ISSUE AS TO WHETHER ACCUMULATION CAN BE ALLOWED EVEN IF THERE IS NO INCOME LEFT. HOWEVER ON PERUSAL OF DECISION OF SPECIAL BENCH OF TRIBUNAL (SUPRA) WE FI ND THAT THE ISSUE IN THE CASE WAS NOT WHETHER THE ACCUMULATION CAN BE AL LOWED EVEN IF THE ENTIRE INCOME HAS ALREADY BEEN APPLIED. THE ISSUE W AS WHETHER THE PERCENTAGE OF ACCUMULATION HAD TO BE COMPUTED WITH RESPECT TO THE GROSS INCOME OR NET INCOME. THUS THE TRIBUNAL IN TH E ASSESSEES OWN CASE IN ASSESSMENT YEAR 2005-06 HAS ALLOWED THE CLA IM OF THE ASSESSEE WITHOUT ANY DISCUSSION ON THE ISSUE AND UNDER THE IMPRESSION THAT THE ISSUE HAD BEEN DECIDED BY THE SPECIAL BENCH OF TRIB UNAL (SUPRA). IN CASE OF BAI SONABAI HIRJI TRUST VS. ITO THE DECISIO N WAS THUS BASED ON INCORRECT ASSUMPTION OF FACTS. SUCH SUBSISTENTIO OR DER OF THE TRIBUNAL CANNOT BE CONSIDERED AS BINDING PRECEDENT. THE SAI D DECISION OF TRIBUNAL WAS ALSO FOLLOWED BY ANOTHER BENCH OF TRIB UNAL IN THE ASSESSEES OWN CASE IN THE ASSESSMENT YEARS 97-98- & 98-99 (SUPRA) IN WHICH THE TRIBUNAL ALSO REFERRED TO THE JUDGMENT OF HONBLE SUPREME COURT IN CASE OF PROGRAMME FOR COMMUNITY ORGANIZATI ON (SUPRA) BUT AS POINTED OUT EARLIER THE ISSUE DECIDED BY THE APEX C OURT IN CASE OF PROGRAMME FOR COMMUNITY ORGANIZATION (SUPRA) WAS NO T WHETHER ACCUMULATION HAD TO BE ALLOWED EVEN IF THERE WAS NO INCOME LEFT FOR APPLICATION BUT THE ISSUE WAS WHETHER ACCUMULATION HAD TO BE COMPUTED WITH RESPECT TO GROSS INCOME OR NET INCOME . SIMILARLY THE TRIBUNAL ALLOWED THE CLAIM OF THE ASSESSEE IN THE A SSESSMENT YEARS 2002-03 AND 2003-04 (SUPRA) IN THE SAME MANNER. THE REFORE THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE IN EARL IER YEARS IN OUR VIEW ITA NO.4309/MUM/2005 PAGE 8 OF 9 CANNOT BE CONSIDERED AS BINDING PRECEDENT. AS REGAR DS THE DECISION OF CIT (A) IN ASSESSMENT YEAR 2004-05 (SUPRA) NOTHING HAS BEEN PRODUCED ON RECORD TO SHOW THAT IT WAS A CONSCIOUS DECISION OF THE GOVERNMENT TO ACCEPT THE ORDER. MERE FAILURE OF AN OFFICIAL TO NO T FILE APPEAL IN ONE YEAR COULD NOT BE THE GROUND TO MAKE A CLAIM IN THE SUBS EQUENT YEAR. THE INCOME CAN BE ACCUMULATED U/S 11(1)(A) IF SOMETHING REMAINED UNSPENT BUT IF THE ENTIRE INCOME HAS ALREADY BEEN SPENT TH E SAME IS FULLY EXEMPT FROM TAX AND THERE IS NOTHING LEFT TO BE ACC UMULATED. WE ARE THEREFORE UNABLE TO ACCEPT THE ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE THAT THE ACCUMULATION HAS TO BE ALLOWED EV EN IF THE ENTIRE INCOME HAS ALREADY BEEN SPENT BY THE ASSESSEE. WE A CCORDINGLY CONFIRM THE ORDER OF CIT (A) DISALLOWING THE CLAIM OF THE A SSESSEE. 6. THE LEARNED CIT (DR) APPEARING FOR THE REVENUE ALSO ARGUED THAT THE DEPRECIATION ON ASSETS USED BY THE TRUST FOR CH ARITABLE PURPOSES COULD NOT BE ALLOWED AS THE ASSETS HAD BEEN ALLOWED AS FULL DEDUCTION IN THE EARLIER YEAR. WE HOWEVER FIND THAT NO SUCH GR OUND HAS BEEN RAISED BY THE ASSESSEE IN THE APPEAL. THE DEPRECIATION HAS ALREADY BEEN DISALLOWED BY THE AUTHORITIES BELOW AND THERE BEING NO ISSUE RAISED BEFORE US WE DECLINE TO GO INTO THE MERIT OF THE I SSUE RAISED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL 2013 SD/ - SD/ - (VIVEK VARMA ) (RAJENDRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED 30 TH APRIL 2013. SUNIL KUMAR SR. P.S. ITA NO.4309/MUM/2005 PAGE 9 OF 9 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR G BENCH ITAT MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES MUMBAI.