TMI Blog2015 (9) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... le income of the assessee for the asst. yr. 2002-03. By not doing so, the AO has not given effect to the ‘finding’ contained in the CIT(A)’s order for the asst. yr. 2001-02, and, to that extent, the AO’s inertia is clearly a mistake apparent from record. This inaction is clearly contrary to the scheme of the Act which permits any assessment, reassessments and recomputation orders to give effect to, or in consequence of, any findings or directions not only in the CIT(A)’s order but also orders of the Tribunal, Hon’ble High Courts, Hon’ble Supreme Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter of assessment under section 143(3) of the Income Tax Act, 1961, for the assessment year 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 ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quite categorical in this regard and it does note that the expenditure was revenue in nature, was allowable in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was not permissible in law, and observed that, it is not open to Revenue to accept the judgment in the case of 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 challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t notwithstanding any time limits contained in s. 153, any orders to give effect to, or in consequence to, findings or directions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings or directions not only in the CIT(A) s order but also orders of the Tribunal, Hon ble High Courts, Hon ble Supreme Court 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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