9911796707
TMI Blog2012 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (previous year ending on 31.03.2000) and assessment year 2001-2002 (previous year ending 31.03.2001). Both the appeals are being disposed of by this Order as the facts are similar and the questions raised in both the appeals are identical. Both the appeals seek to raise the following questions for consideration of this court as substantial questions of law : a) Whether on the facts and circumstances of the case the Hon'ble Tribunal was justified in upholding the order of the CIT(A) in holding that the matter could not have been rectified under Section 154 and deleting the addition made by the Assessing Officer? b) Whether on the facts and circumstances of the case Hon'ble Tribunal erred in holding that the issue whether the expenses in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a deduction of Rs. 79,79,314/- under Section 35D of the said Act and the same was erroneous and prejudicial to the interest of revenue. This was on the basis that the aforesaid expenses were incurred in connection with private placement of equity shares, while the deduction under Section 35D(2)(c)(iv) of the said Act is available only in respect of public issue of shares. The Respondent responded to the notice and the Commissioner of Income Tax by an order dated 29.03.2003 dropped the proceeding under Section 263 of the said Act. However the above Order dropping the Section 263 proceedings did record that the same was without prejudice to any action that may be taken by the department under Section 147 of the said Act. (c) Thereafter, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CIT(Appeals) and the Tribunal by Order dated 20.04.2012 dismissed the Appeal of the Revenue and filed a copy of the Order the Tribunal dated 28.04.2012 before this court. (e) Pending the challenge to the order dated 15.06.2006 of the CIT (Appeals) before the Tribunal, the assessing officer by an order dated 08.03.2007 rectified the order dated 31.03.2003 passed under Section 143 (3) of the said Act by disallowing a deduction of Rs. 77,05,341/- under Section 35D of the said Act and adding the same to the Income. This was on the basis that the above expenses were incurred with regard to private placement of equity shares and not public issue of shares and that therefore the assesse was not entitled to the benefit of Section 35D(2)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(1) of the said Act to rectify a mistake is barred as the same issue was a subject matter of both appellate and Revisional proceedings under the said Act. Further he contends that whether the nature of the issue by the Respondent was public or private is a subject matter of examination and consequently debatable. Therefore Section 154 of the said Act can not be invoked as it is not a mistake apparent from the record. 5. Before considering the rival contentions it may be useful to reproduce SubSection (1A) of Section 154 of the said Act which reads as under: ("1A) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The aforesaid decision of the Commissioner (Appeals) was carried by the Revenue in Appeal to the Tribunal and the Tribunal by its order dated 20.04.2012 dismissed the Revenue Appeal. Thus, this very matter (issue) viz. availability of deduction under Section 35D of the said Act has been subject matter of appeal and the same has been considered and decided by the Appellate Authorities. Consequently, no rectification proceeding would lie in such a case in view of Sub Section 1(A) to Section 154 of the said Act. 7. Besides as contended by the Respondent and as found by the CIT(Appeals) in his Order dated 15.06.2006 and upheld by the Tribunal in its Order dated 20.4.2012 the issue of allowability of deduction under Section 35D(2) (iv) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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