2012 (11) TMI 839 - AT - Income Tax

Rectification of mistake - held that - It appears that this vital and material fact brought specifically to the notice of the Tribunal however appears to have escaped the attention of the Bench and the matter has been sent back to the AO for further examination after observing that it is not clear whether the expenses were claimed by the assessee in the earlier 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. 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 decision and the same being apparent from record - Para no. 28 of the order 2010 (1) TMI 908 - ITAT MUMBAI modified.

Summary

Issues:
1. Rectification of mistakes alleged in the common order of the Tribunal dated 25th January, 2010 for assessment year 2004-05.
2. Disallowance amounting to Rs.15,705,866 made by the Assessing Officer in relation to foreign exchange loss.
3. Disallowance of loss of Rs.63.69 lakhs incurred on account of foreign exchange fluctuations.
4. Disallowance of Rs.37,639,137 claimed by the appellant u/s 35DD.

Analysis:

1. The assessee sought rectification of alleged mistakes in the Tribunal's order for the assessment year 2004-05. The Tribunal had remitted the issue of disallowance related to foreign exchange loss back to the Assessing Officer for further examination. The Tribunal found that the details furnished by the assessee before the CIT(Appeals) were not mentioned in the AO's order. The Tribunal decided to restore the issue to the AO for fresh consideration based on the particulars provided by the assessee. The Tribunal concluded that there was no mistake in its order regarding this issue.

2. The Tribunal considered the disallowance of loss on account of foreign exchange fluctuations. The appellant contended that the Tribunal overlooked details submitted to the AO, which were also presented to the CIT(A). The Tribunal noted that the deduction claimed under section 35DD was initially allowed in the assessment year 2002-03. The Tribunal agreed with the assessee that there was a mistake in its order as the relevant aspect was not considered. The Tribunal rectified its order, directing the AO to verify if the deduction was allowed in the initial year and to allow it in the year under consideration.

3. The Tribunal addressed the disallowance of Rs.37,639,137 claimed by the appellant under section 35DD. The Tribunal observed that the expenditure for which the deduction was claimed in the assessment year 2004-05 was actually incurred in the previous year relevant to assessment year 2002-03. The Tribunal acknowledged that the deduction was allowed in the initial year after verification. The Tribunal rectified its order, instructing the AO to verify the allowance of the deduction in the initial year and to permit it in the current year.

4. In conclusion, the Miscellaneous Applications of the assessee were partly allowed by the Tribunal, rectifying the mistakes in the order related to the disallowances and deductions claimed by the appellant under section 35DD for the assessment year 2004-05.