JUDGMENT : J.B.PARDIWALA, J. 1. As the issues raised in all the captioned tax appeals are the same and the parties are also the same, those were heard analogously and are being disposed of by this common judgment. 2. This batch of Tax Appeals under Section 260A of the Income Tax Act, 1961 (for short “the Act, 1961”) is at the instance of the Revenue and are directed against the order passed by the Income Tax Appellate Tribunal, ‘C’ Bench, Ahmedabad, dated 30th July 2020 in the ITA Nos. 361/Ahd/2014, 1662/Ahd/2014, 829/Ahd/2017, 803/Ahd/2017, 91/Ahd/2014, 330/Ahd/2014, 2283/Ahd/2014, 752/Ahd/2017, 753/Ahd/2017 and 2321/Ahd/2017 respectively for the Assessment Years 2009-2010 to 2014-2015. 3. The Revenue has proposed the following substantial questions of law for the consideration of this Court: In Tax Appeal No. 157 of 2020 “(A) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in negating the findings of the CIT(A) as well as the Assessing Officer denying the benefits of Sections 11 and 12 of the Act by invoking proviso to Section 2(15) r.w. Section 13(8) of the Act? (C) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in allowing the accumulation of 15% without appreciating the fact that once the provision of Section 2(15) r.w. Section 13(8) is applicable, the assessee forfeits all the exemptions under Sections 11 and 12 of the Act? (D) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in deleting the deduction in the fixed assets of Rs.34,49,94,135/- without appreciating the fact that once the provision of Section 2(15) r.w. Section 13(8) is applicable, the assessee forfeits all the exemptions under Sections 11 and 12 of the Act? ” In Tax Appeal No. 158 of 2020 “Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is justified in confirming the view of the Ld. CIT(A) in allowing the claim of contribution to pension fund, without appreciating that the assesse has not fulfilled the conditions laid down in section 36(1)(iv) w.r. to Rule 87 and 88 of the I.T. Rules, 1962? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing depreciation on assets, full cost of which was already allowed as application in earlier years. Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing depreciation on assets, full cost of which was already allowed as application in earlier years. The ratio of decision of the Supreme Court in Rajasthan and Gujarati Charitable Foundation is not applicable in the present case as in that case exemption under section 11 and 12 was available to the assesse, whereas in the present case, the exemption under section 11 and 12 is not available to the assesse as per the stand of the department. Therefore an AOP cannot be granted benefit of both depreciation and capital expenditure in accordance with normal business provisions of the Act? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing the claim of depreciation to the assessee by ignoring the fact that allowance of depreciation on the fixed assets, acquisition of which has been allowed as application of income in earlier years, will tantamount to double deduction particularly when benefit of section 11 & 12 has not been allowed and proviso to section 2(15) has been held to be applicable?” In Tax Appeal No. 159 of 2020 “(A) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in negating the findings of the CIT(A) as well as the Assessing Officer denying the benefits of Sections 11 and 12 of the Act by invoking proviso to Section 2(15) r.w. Section 13(8) of the Act? (B) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in allowing the assessee's appeal without appreciating that Revenue has filed Tax Appeal No.408 of 2012 before this Hon'ble Court against the decision of the Appellate Tribunal restoring registration under Section 12AA of the Act cancelled by the CIT? (C) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in allowing the accumulation of 15% without appreciating the fact that once the provision of Section 2(15) r.w. Section 13(8) is applicable, the assessee forfeits all the exemptions under Sections 11 and 12 of the Act? (C) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in allowing the accumulation of 15% without appreciating the fact that once the provision of Section 2(15) r.w. Section 13(8) is applicable, the assessee forfeits all the exemptions under Sections 11 and 12 of the Act? (D) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in deleting the deduction in the fixed assets of Rs.34,49,94,135/- without appreciating the fact that once the provision of Section 2(15) r.w. Section 13(8) is applicable, the assessee forfeits all the exemptions under Sections 11 and 12 of the Act? “ In Tax Appeal No. 160 of 2020 “Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing depreciation on assets, full cost of which was already allowed as application in earlier years. The ratio of decision of the Supreme Court in Rajasthan and Gujarati Charitable Foundation is not applicable in the present case as in that case exemption under section 11 and 12 was available to the assesse, whereas in the present case, the exemption under section 11 and 12 is not available to the assesse as per the stand of the department. Therefore an AOP cannot be granted benefit of both depreciation and capital expenditure in accordance with normal business provisions of the Act? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing the claim of depreciation to the assessee by ignoring the fact that allowance of depreciation on the fixed assets, acquisition of which has been allowed as application of income in earlier years, will tantamount to double deduction particularly when benefit of section 11 & 12 has not been allowed and proviso to section 2(15) has been held to be applicable?” In Tax Appeal No. 161 of 2020 “[A], [B], [C], [D] and Whether the Hon’ble ITAT has erred in allowing the claim of exemptions u/s. 11 & 12 to the assesse, without appreciating the findings of the CIT (Appeals) that the assesse has also violated the provision of section 11(2)(b) r.w.s. 11(5) of the Act and thereby making it ineligible for claim of exemption u/s. 11 & 12, in view of provisions of section 13(1)(d) of the Act? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is justified in deleting dividend income without appreciating that in case the assesse is not entitled for exemption u/s. 11 & 12 of the Act, therefore, the disallowance as per Rule 8D r.w.s. 14A will be applicable?” In Tax Appeal No. 162 of 2020 “Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing depreciation on assets, full cost of which was already allowed as application in earlier years. The ratio of decision of the Supreme Court in Rajasthan and Gujarati Charitable Foundation is not applicable in the present case as in that case exemption under section 11 and 12 was available to the assesse, whereas in the present case, the exemption under section 11 and 12 is not available to the assesse as per the stand of the department. Therefore an AOP cannot be granted benefit of both depreciation and capital expenditure in accordance with normal business provisions of the Act? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing the claim of depreciation to the assessee by ignoring the fact that allowance of depreciation on the fixed assets, acquisition of which has been allowed as application of income in earlier years, will tantamount to double deduction particularly when benefit of section 11 & 12 has not been allowed and proviso to section 2(15) has been held to be applicable?” In Tax Appeal No. 163 of 2020 “[A], [B], [D] and Whether the Hon’ble ITAT has erred in allowing the claim for exemption u/s. 11 & 12 to the assesse, without appreciating the findings of the CIT (Appeals) that the assesse has also violated the provisions of section 11(2)(b) r.w.s. 11(5) of the Act and thereby making it in-eligible for claim of exemption u/s. 11 & 12, in view of provisions of section 13 (1)(d) of the Act? Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal is justified in allowing the accumulation of 15% without appreciating the fact that once the provisions of section 2(15) is applicable to the assesse, the assesse forfeits all the exemptions u/s. 11 and 12 of the Act in view of the provisions of section 13(8) of the Act? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is justified in deleting dividend income without appreciating that in case the assesse is not entitled for exemption u/s. 11 & 12 of the Act, therefore, the disallowance as per Rule 8D r.w.s. 14A will be applicable?” In Tax Appeal No. 164 of 2020 “Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing depreciation on assets, full cost of which was already allowed as application in earlier years. The ratio of decision of the Supreme Court in Rajasthan and Gujarati Charitable Foundation is not applicable in the present case as in that case exemption under section 11 and 12 was available to the assesse, whereas in the present case, the exemption under section 11 and 12 is not available to the assesse as per the stand of the department. Therefore an AOP cannot be granted benefit of both depreciation and capital expenditure in accordance with normal business provisions of the Act? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing the claim of depreciation to the assessee by ignoring the fact that allowance of depreciation on the fixed assets, acquisition of which has been allowed as application of income in earlier years, will tantamount to double deduction particularly when benefit of section 11 & 12 has not been allowed and proviso to section 2(15) has been held to be applicable?” 3. We have heard Mrs. Mauna M. Bhatt, the learned Senior Standing Counsel appearing for the Revenue and Mr. Saurabh N. Soparkar, the learned Senior Counsel with Mr. Gursharan H. Virk, Advocate for the Respondent. 4. FIRST ISSUE: DISALLOWANCE UNDER Sec. 36(1) (vii) (Being Question in Tax Appeal nos. 161 & 163 of 2020) 4.1 During the assessment proceedings, the assessing officer noticed that the assesse had claimed Rs.47,50,00,000/- as a contribution to the pension Fund in the income and expenditure account. The assessing officer took the view that any sum paid by the assesse as an employer by way of contribution towards a pension scheme as referred to in section 80CCD on account of an employee to the extent it does not exceed 10% of the salary of the employee in the previous year is not liable to be deducted and is not exempt from tax. The assessing officer observed that the assesse had not furnished the working of its claim as per the conditions laid down and, in such circumstances, 25% of the amount claimed by the assesse was allowed and 75% of the claim was disallowed. This was carried in appeal before the CIT(A) by the Assessee. 4.2 The CIT(A), after due consideration of the fact that the Gujarat Maritime Board Employees Pension Trust Fund was duly approved by the CIT, Gandhinagar with effect from 28.03.2003 and the contribution was paid in compliance of the terms of the appointment on the respective erstwhile state government employees in the earlier year, which was constantly allowed by the department, reversed the finding of the assessing officer and allowed the Assessee’s appeal since those findings could not be controverted by the Revenue before the CIT(A). 4.3 The Tribunal affirmed the view of the CIT (A) after holding that the Revenue has not been able to controvert the findings of the CIT(A). 4.4 The issue relating to the contribution to pension fund under Section 36(1)(iv) of the Income Tax Act read with Rule 87 and 88 of the Income Tax Rules would not constitute a question of law and would be in the realm of factual issue. The ITAT has observed in its order that no evidence was led by the Revenue-Appellant to dispute the correctness of the findings recorded by the CIT (Appeals). 5. SECOND ISSUE: WHETHER THE ASSESSEE CAN CLAIM DEPRECIATION ON THE ASSETS WHEN THEIR PURCHASE WAS CLAIMED AS APPLICATION OF FUNDS (Being Question in Tax Appeals nos. 158, 160, 162 and 164 respectively of 2020) 5.1 As regards the claim of the Appellant that the Assessee cannot claim depreciation of such assets which were allowed as application of income, the case of the Revenue is that the same is not admissible because the Assessee had claimed the very purchase as an application of fund by the charitable institution. 5.2 The CIT (A) held against the Revenue and the Tribunal dismissed the appeals of the Revenue on this ground following the judgment of the Supreme Court in the case of Commissioner of Income Tax – III, Pune v. Rajasthani and Gujarati Charitable Foundation, Poona, reported in (2018) 402 ITR 441 : (2018) 7 SCC 810 . 5.2 The CIT (A) held against the Revenue and the Tribunal dismissed the appeals of the Revenue on this ground following the judgment of the Supreme Court in the case of Commissioner of Income Tax – III, Pune v. Rajasthani and Gujarati Charitable Foundation, Poona, reported in (2018) 402 ITR 441 : (2018) 7 SCC 810 . 5.3 It is pertinent to note that the aforesaid issue is covered against the Revenue in terms of the judgment of the Apex Court in the Commissioner of Income Tax – III, Pune (supra), referred to above. The order of the ITAT discusses, after relying on the Judgment of the Apex Court in the Rajasthani and Gujarati Charitable Foundation (supra) that the income of the trust is required to be computed u/s. 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from the gross income of the trust. 6. THIRD ISSUE: WHETHER THE ASSESSEE IS INELIGIBLE TO CLAIM THE BENEFIT OF SEC. 2(15) OF THE ACT (Being Question in Tax Appeal nos. 157, 158, 159, 160, 162, 163 and 164 respectively of 2020) 6.1 The return of income declaring a loss of 94,15,94,712/- was filed by the Assessee on 30.09.2009. Subsequently, on the case being taken up u/s. 143(2), the Assessee submitted that it was constituted under the Gujarat Maritime Board Act, 1981 and was engaged in the activity of administering, controlling and managing minor ports in the State of Gujarat. 6.2 The ITAT has clearly observed that the activities carried out by the Assessee are for the advancement of any other object of general public utility without any intention of making profit after considering the provisions of the Gujarat Maritime Board Act, 1981 and the facts of the case. Therefore, it cannot be said that the activities carried out by the Assessee are in the nature of trade, commerce or business. Furthermore, the decisions of this court in the case of CIT v. Gujarat Industrial Development Corporation (GIDC), 83 taxmann.com 366 (Guj) and Ahmedabad Urban Development Authority (AUDA), 83 taxman.com 78, squarely cover the present issue in favour of the Assessee since the fees collected by the Assessee is incidental to the object and purpose of attainment of the main object for the development of minor ports in the State of Gujarat. This Court has held in the case of AUDA (supra) that merely because the AUDA is charging fees and/or cess, the activities cannot be said to be in the nature of trade, commerce or business. In the case of GIDC (supra), this Court has clearly held that the charitable activities also require operational / running expenses as well as capital expenses to be able to sustain and continue in the long run. Therefore, the ITAT has rightly found that the activity of the assesse is for the advancement of any other object of general public utility and is not hit by the proviso to section 2(15) of the Act, and therefore, the Assessee is entitled to exemption u/s. 11 of the Act. 6.3 The aforesaid issue has already been decided by this Court against the Revenue in Tax Appeal No. 18 of 2020, in the case of the Assessee itself. 7. In view of the above, the substantial questions of law, as proposed by the Revenue are answered against the Revenue and in favour of the assessee 8. The Appeals, therefore, fail and are hereby dismissed.