Adarsh Kumar Goel, J. - (1.) DELAY in refilling condoned.
(2.) THIS appeal has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 against order dated 30.4.2009 passed by the Income Tax Appellate Tribunal, Delhi Bench "E", New Delhi, in ITA No. 1122/Del/08 for the assessment year 2004 -05, claiming following substantial questions of law: (i) Whether on the facts and in the circumstances of the case, the learned CIT(A) was justified in allowing payment of 30% of Market fees earned by it paid to Haryana Agricultural Marketing Board as application of income for charitable purpose, despite the finding that 30% of the market fee has to be paid to the said Board as a statutory obligation under the Agricultural Marketing Board Act, and, therefore, it is not application of income, but it is sharing of Income by an overriding title as per the Act by which the Market Committee is governed? (ii) Whether on the facts and in the circumstances of the case, the learned ITAT was justified in holding that the depreciation on fixed asset is allowable in the case of charitable trust/institution particularly when the income is computed as per provisions of Section 11 to 13 of the Income Tax Act, 1961 and question of depreciation does not arise when capital expenditure is also considered as application of income of the Assessee and there remains no assets/WDV for claim of depreciation. The strength is drawn from the order of the Hon'ble Supreme Court of India passed in the case of Escorts Ltd. and Anr. v. Union of India and Ors. reported in : 199 ITR 43 (108) CTR 275 wherein it has been held that when deduction under Section 35(2)(iv) is allowed in respect of capital expenditure on scientific research, no depreciation is allowed under Section 32 on the same asset. There is a fundamental axiom that double deduction is not intended unless there is a clear statutory indication to the contrary? Learned Counsel for the revenue very fairly states that question (i) is covered by the judgment of this Court dated 5.7.2010 in ITA No. 151 of 2010 (Commissioner of Income Tax, Hisar v. Market Committee, Narwana) whereas question (ii) is covered by the judgment of this Court dated 5.7.2010 in ITA No. 535 of 2009 (The Commissioner of Income Tax, Karnal v. Market Committee, Pipli).
(3.) ACCORDINGLY , the appeal is dismissed.;