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TMI Blog2015 (9) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008-09. Learned representatives agree that whatever we decide for the assessment yea r 2008-09 will follow mutatis mutandis for the assessment year 2009-10 as well. 3. Grievance raised by the assessee, which is identically worded for both the years- as not only the facts of the case but even date of the CIT(A)'s orders in both the assessment years is the same, is as follows: That the order dated 21st December 2012 passed under section 250 of the Income Tax Act, 1961, by the learned CIT(A)-XV, New Delhi, is against the law and facts on the file inasmuch as he was not justified to sustain the addition made by the Assessing Officer of Rs. 17,28,832 in respect of preliminary expenses written off as deferred revenue expenses on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle and is restricted to 1/5th because the assessee has claimed only that portion of the expenses. As for the observations made by the coordinate bench that "such deletion for the year under consideration does not mean that the balance amount can be claimed by the assessee in succeeding years as allowability or otherwise thereof has to be considered independently for the reason that the assessee is following mercantile system of accounting and the expenses of revenue nature are to be incurred in the year under consideration", this observation cannot pre-empt the claim of the assessee for the subsequent year as the bench did not have any occasion to deal with the same. As the coordinate bench very rightly observed, this issue has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in that case and challenge its correctness in the case of another assessee, without just cause". The same view was reiterated by the Hon'ble Supreme Court in the case of Berger Paints India Ltd. vs. CIT (2004) 187 CTR (SC) 193 : (2004) 266 ITR 99 (SC), and followed by the Hon'ble Delhi High Courts in the cases of CWT vs. R.K.K.R. Industries (P) Ltd. (2005) 198 CTR (Del) 567 and CIT vs. Neo Poly Pack (P) Ltd. (2000) 245 ITR 492 (Del). 7. When it is not open to the revenue authorities to challenge the same stand taken by an appellate authority in the case of an assessee, when the revenue authorities have not challenged that stand taken by the appell ate authority in the cases of other similarly situated assessees, it is certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rections contained in an order passed by the CIT(A) can be passed at any time. 7. As to what is the nature of 'finding or direction' under s. 153(3), Hon'ble Supreme Court's following observations in the case of Rajinder Nath vs. CIT (1979) 12 CTR (SC) 201 : (1979) 120 ITR 14 (SC) provide guidance: "A finding given in an appeal, revision or reference must be a finding necessary for the disposal of the case, that is in respect of a particular assessee and in respect of a particular assessment year. To be a necessary finding, it must be directly involved in disposal of a case. It is possible that in certain cases, in order to render a finding on 'A', a finding in respect of 'B' is called for..........The same principle seems to apply when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as of "any Court" in a proceeding otherwise than in appeal. An AO, as indeed any other authority in the IT Act, cannot turn to the assessee and say that although he has authority to do something for the good of the assessee, it is not necessary that he must exercise that authority. The inaction of the AO, therefore, is a mistake apparent from the record, and there cannot be any two reasonable opinions on whether or not the AO should give effect to the finding of the CIT(A). It is also important to bear in mind that any other view of the matter will result in a double jeopardy to the assessee which will constitute 'absurdity' besides being grossly inequitable and patently unfair. An interpretation which leads to such absurdities, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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