9911796707
TMI Blog2012 (11) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee at the time of hearing, the first mistake that has allegedly occurred in the order of the Tribunal is as under : " Both the appellant as well as the revenue disputed the order of CIT(A) whereby he reduced the disallowance amounting to Rs.15,705,866 made by the Assessing Officer in relation to the foreign exchange loss. The appellant challenged the amount of disallowance sustained whereas revenue challenged the relief granted. This issue has been decided by Hon'ble ITAT in paragraph 11 in relation to the assessee's appeal and in paragraph 38 in relation to the revenue's appeal. These paragraphs are reproduced below: "11. We find that the particulars of usage of funds in the subsequent year were not before the AO. We also feel tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this respect to CIT(A) and enumerated in the order of CIT(A) at pages 10 to 13 had been submitted by the appellant to the Assessing Officer also. There is thus mistake apparent from record as aforesaid in the order of the Tribunal which is required to be rectified u/s. 254(2) of the Act." 3. We have heard the arguments of both the sides and also perused the relevant material on record. It is observed that the particulars of usage of funds in subsequent years as furnished by the assessee before the learned CIT(Appeals) and relied upon by the later to decide the issue relating to disallowance on account of foreign exchange loss did not find any mention in the order of the AO. This issue was discussed by the AO in paragraph No. 10 of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant u/s 35DD. Hon'ble Tribunal has decided this issue in para 28 in the following words: 28. Aggrieved the revenue is on appeal before us. We find that all the particulars of expenses regarding demerger were not considered by the AO. Further, the Demerger has taken place with effect from 1.4.2001. As per sec 35DD, 1/5th of the expenses are allowable in that year and 4 succeeding Assessment Years. It is not clear whether the expenses were claimed in the earlier years and if so the result thereof. We feel the matter requires to go back to the AO for further examination and decide the matter in accordance with law." The appellant submits that during the course of hearing the attention of Hon'ble Tribunal had been specifically drawn to page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records were available with the Assessing Officer and the Assessing Officer has already allowed deduction u/s. 35DD for that year. It appears that this material aspect of the case has, through oversight, escaped consideration by the Hon'ble Bench." 5. We have heard the arguments of both the sides and also perused the relevant material on record. It is observed that the expenditure in respect of which deduction u/s 35DD was claimed by the assessee in the year under consideration i.e. assessment year 2004-05 was actually incurred by the assessee in the previous year relevant to assessment year 2002-03 and accordingly deduction u/s 35DD was claimed by the assessee initially in assessment year 2002-03 and subsequently in assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r years and if so the result thereof. In our opinion, once the deduction u/s 35DD was allowed in the initial year i.e. assessment year 2002-03 after necessary verification/examination in the assessment completed u/s 143(3) when the total expenditure is eligible for the said deduction was actually incurred by the assessee, the same could not be disallowed in the subsequent years for want of relevant details or documentary evidence especially when the assessment for the initial year on this issue was not disturbed or modified. We are, therefore, inclined to agree with the assessee that there is a mistake in the order of the Tribunal in deciding this issue overlooking the important and material aspect which has a direct bearing on the ultimate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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