TMI Blog2008 (9) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... ; asst. yr. 1988-89 ITA No. 3009/Mum/1997; asst. yr. 1993-94 ITA No. 1666/Mum/2001; asst. yr. 1993-94 ITA No. 6408/Mum/1997; asst. yr. 1994-95 ITA No. 2732/Mum/1998; asst. yr. 1995-96 ITA No. 2381/Mum/1999; asst. yr. 1996-97 2. The identical issue in all these six appeals is regarding the validity of the direction of the CIT(A) to allow deduction under s. 40 (a)(iii) of the IT Act, 1961. 3. Learned CIT-Departmental Representative submitted that the brief facts of the case are that the assessee is an AOP consisting of 10 public sector oil companies formed vide Memorandum of Understanding (MoU) dt. March, 1986 with the common objective mentioned in the MoU. The assessee entered into a service/technical agreement in foreign count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own case before the Tribunal and the Tribunal in ITA Nos. 5466 to 5468/Mum/2000, dt. 21st April, 2008 has decided the issue in favour of the assessee. He submitted that the case law relied upon by the learned Departmental Representative is distinguishable on facts. 5. We have considered the rival submissions carefully. We find that the basic facts of the case are not in dispute. We find that the issue of applicability of provision of s. 40(a)(iii) of the Act is covered in favour of the assessee with the decision of the Mumbai Tribunal in assessee's own case for the asst. yrs. 1989-90, 1990-91 and 1991-92, wherein the Tribunal in identical facts has decided the issue in favour of the assessee. We hold that the Tribunal after considering al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Departmental Representative submitted that the CIT(A) has erred in holding that the reopening of assessment under s. 147 in these two cases is bad in law. Both the parties before us submitted that the issue of reopening of assessment under s. 147 is identical in facts with facts of the reopening of the case in the earlier asst. yrs. 1989-90 to 1991-92. 7. We have heard the parties on the issue. We find that the assessee has furnished all the material details at the time of original assessment and there is no failure on the part of the assessee to disclose all material facts to reopen the assessment after 4 years from the end of the respective assessment years. In identical facts, the Tribunal in assessee's own case for the earlier as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the assessee. He submitted that provisions of s. 40 (a)(iii) of the Act are applicable to the facts of the case of the assessee, which the AO failed to apply and therefore, the order of the assessment under s. 143(3) of the Act is erroneous and prejudicial to the interests of the Revenue. 9. We have considered the rival submissions carefully. We find that in identical facts of the case, the issue that whether the provision of s. 40 (a)(iii) is applicable to the facts of the case of the assessee or not, we have decided the issue, for the reasons recorded therein in the foregoing paras of this order while disposing of Revenue's appeal in the case of the assessee for asst. yrs. 1988-89 and 1993-94 to 1996-97, in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant period is not sustainable in law. The learned counsel for the assessee submitted that the taxes were actually paid by the assessee in subsequent years and this has been recorded by the CIT(A) in his appellate order. The learned counsel for the assessee submitted that the ground of appeal of Revenue for the relevant year is that the only objection of the Revenue is that the assessee has not paid the taxes in Kuwait before the end of the relevant previous year. He submitted that the CIT(A) has recorded in para 10 of his order that the assessee has made actual payment of taxes in Kuwait in five instalments in subsequent periods and has furnished before him the original documents evidencing the payments. 12. We have considered the rival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the CIT(A). In these facts of the case, we hold that the assessee is entitled to relief under s. 91 (1) of the Act and the order of the CIT(A) is confirmed and the ground of appeal of Revenue is dismissed. ITA Nos. 826 827/Mum/2002: Asst. yrs. 1997-98 1998-99; Revenue's appeals 13. The first issue in these appeals of the Revenue is regarding applicability of s. 40(a)(iii) of the Act to the case of the assessee. We have heard the parties. For the reasons recorded in the foregoing paras while disposing of the appeals of Revenue in the case of the assessee in ITA No. 5465/Mum/2000, ITA No. 3009/Mum/1997, ITA No. 1666/Mum/2001, ITA No. 6408/Mum/1997, ITA No. 2732/Mum/1998, ITA No. 2381/Mum/1999, we hold that the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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