TMI Blog2003 (9) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... not taxable but as exempt. The Assessing Officer rejected his claim as such and also disallowed the aforesaid expenditure too. On appeal, the Commissioner of Income-tax (Appeals) granted relief to the assessee. In so far as the said disallowance of expenditure. Yet, the instant appeal by the Revenue before us. 3. The learned counsel for the assessee submitted that: In order to claim fees in respect of cases where the assessee appeared as a Government Pleader, copies of judgments along with copies of grounds of appeal etc. are required to be obtained before preparation of separate bills in respect of each case. A lot of effort is required for obtaining the judgment copies grounds of appeal and the same has to be segregated from out of huge volumes of files and papers in various courts all over the State. The assessee has to necessarily entrust the matter to certain staff members attached to the office of the Govt. Pleader. They were assisting him while he was working as a Government Pleader. He had to pay them salary or remuneration for this purpose. Persons who are put on the job of collecting relevant copies of judgments and other particulars like ground of appeal and value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have earned income without incurring any expenditure thereon and therefore, the Assessing Officer ought not have disallowed the expenditure. He erred in stating that no data was filed. The Assessing Officer has not considered the material filed before her except to pass her order in a mechanical fashion. Hence on the facts and circumstances of the case, the Assessing Officer erred in not accepting the return of income filed by the assessee and in making the additions to the returned income which has been correctly set right by the order impugned relying on the facts and circumstances of the case and in the light of the case-laws relied upon, more so in the light of paras 4 to 8 of the statement of facts before the Commissioner (Appeals) clearly throwing light on the issue in question in favour of the assessee. 6. The learned representative for the Revenue reiterated its stand by taking us through para 3(1) of the order impugned besides the relevant portions of the assessment order at the bottom of page 3 and in the first half of page 4 thereof. 7.1 Rival submissions heard and relevant orders read besides the case laws relied upon by both the parties. After doing so we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinuance of a business the amount received thereafter though assessable, the expenditure incurred for earning the income was held to be deductible. Similarly in the case of Dipson Co. it was held that where the assessee firm claimed expenditure incurred on engagement of lawyer for earning amount of arbitration award in respect of discontinued business for computing the assessee's income for the purpose of assessment, expenditure was necessarily to be excluded from the amount received and thus the assessee's claim had to be allowed. That apart, it may also be appreciated, when looking at the provisions of sections 44AD to AF of the Act that they provided for assessing a particular percentage of receipt as income when the turnover is below a particular limit irrespective of the fact whether books of account are maintained. Furthermore, it may also be seen that our view supporting the stand of the assessee is also strengthened by the CBDT Instruction No. 1894 dated 16-6-1992 which would be worthwhile to extract as hereunder: "Section 253(2) of I.T. Act empowers the CsIT to authorise of appeals to the ITAT against the order of DCIT (Appeals)/CIT (Appeals). The Board has from time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Apex Court in the case of CCE v. Usha Martin Industries Ltd [1977] 7 SCC 47. The relevant portion of the Supreme Court's decision is worthwhile to be extracted as hereunder: "21. Through a catena of decisions this Court has pronounced that the Revenue cannot be permitted to take a stand contrary to the instructions issued by the Board. It is a different matter that an assessee can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the Department, more so when others have acted according to such instructions, (vide CCE v. Jayant Dalal (P.) Ltd. [1997] 10 SCC 402: [1996] ELT 638, Ranadey Micronutrients v. CCE [1996] 10 SCC 387 : [1996] 87 ELT 19; Poulose and Mathen v. CCE [1997] 3 SCC 50 : [1997] 90 ELT 264; British Machinery Supplies Co. v. Union of India [1996] 9 SCC 663 : [1996] 86 ELT 449. Of course the appellate authority is also not bound by the interpretation given by the Board but the Assessing Officer cannot take a view contrary to the Board's interpretation." Similarly, it will also be further worthwhile to extract from the decision of the jurisdictional High Court in the case of T.V. Ramanaiah Sons. "Whenever ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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