TMI Blog2015 (5) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... not be in excess of the provision contained in Sub-section 3 which is 2.5% of the total capital employed. One special variety of estoppel is res judicata. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong. But res judicata in this branch of law is bound to yield to two fundamental principles of public law: that jurisdiction cannot be exceeded; and that statutory powers and duties cannot be fettered. The jurisdiction of the CIT (A) in its order dated 29th May, 1998 extended merely to the assessment year 1995-96. The assessment year 1996-97 is a separate unit and that assessment cannot be made otherwise than in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of public issue, it can be amortised U/s.35D. Appellant has claimed I/10th of such expenditure. Therefore, he is entitled to such deduction U/s.35D. The case of Brooke Bond India is not applicable to that of the appellant. A.O. is not justified in treating ₹ 8.72 lacs as capital expenditure. The addition in this regard is deleted. The CIT (Appeal) in its aforesaid order dated 29th May, 1998, however, missed out sub-section 3 of section 35D. The department also appears to have been oblivious about the same. The assessee repeated its claim for deduction of a sum of ₹ 8.72 lakhs in the assessment year 1996-97 which the assessing officer disallowed relying on sub-section 3 of section 35D. He held that the outer limit of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of the expenditure having been fixed and become final in the initial year, the amount of such deduction can be varied in any subsequent year? The amount deductible under sub-section 1 of Section 35D is subject to the provisions contained in Sub-section 3 of Section 35D. The provision contained in Sub-section 3 provide an outer limit. Therefore, there can be no dispute nor has Mr. Khaitan, learned Senior Advocate disputed that deduction under Section 35D cannot be in excess of the provision contained in Sub-section 3 which is 2.5% of the total capital employed. The contention raised by Mr. Khaitan, however, is that the revenue did not challenge the order dated 29th May, 1998 passed by the CIT which we have quoted above. He added th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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