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TMI Blog2013 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... al for A.Y. 1997-98. All these appeals are heard together and disposed of by a consolidated order for the sake of convenience. 2. Common grounds raised in assessee's appeals are as under: "1. Because the AO order u/s 254/143(3) is being challenged on facts law as it has been passed overlooking ignoring the directions of CIT(A) and Tribunal which by the Higher Authorities band binding in nature and not discretionary. 2. Because the action is under challenge for not disposing off the directions of Tribunal order dt. 17.2.2006 to make appropriate modification of assessed income relating to surrender of withdrawal for an amount of Rs. 94,95,000/- from IDBI. 3. Because the action is under challenge on charging interest u/s 234B, 234C of the Income Tax Act." 2.1. Ld. Counsel for the assessee at the out set contends that assessee's appeals are only in support of CIT(A)'s order, do not raise any specific grounds and they are not pressed. In view thereof the assessee's appeals are accordingly dismissed. 2.2. Common grounds raised in Revenue's appeals are as under: "The Ld. CIT(A) has erred on facts and in law by not confirming the order passed by the AO order 154 and by al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f claim u/s 32AB by assessee. The assessee also filed appropriate suit in Hon'ble Delhi High Court against MTPL for damages on account of default. 3.4. For the purchase of the above machinery the assessee had withdrawan the entire amount of Rs. 94.25 lacs for leasing from the Industrial Development Bank of India during A.Y. 1995-96 deposited u/s 32 AB in earlier years to claim deduction u/s 32AB. The assessee had claimed deduction u/s 32AB in original return and in view of the above unfortunate developments, assessee had to surrender the claim of deduction u/s 32AB and consequently reduction of income by way of lease rental as it was not earned nor accrued due to the non purchase of machinery and termination of lease transaction itself by the lessees. The assessee filed a revised return accordingly. While framing the assessment on the basis of revised return assessing officer though accepted the surrender of claim of deduction u/s 32AB however, held that assessee has earned the lease rental income and brought the same to taxation. Thus assessing officer made double addition i.e. one by bringing to tax the claim of deduction u/s 32AB and taxing the lease rental income although it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n allowed reasonable opportunity to consider the issue of deduction u/s 32AB. . On going through the facts of the case and also details thereof it appears that there is no mistake apparent from record while giving effect to the order of the Hon'ble ITAT. The issue Involved does not come within the purview of section 154 as there are difference of opinion and the assessee company already before Hon'ble Delhi High Court on these issues. However, assessment for the AY. 95-96 was also completed uls 143(3)/254 on 19.11.2007 and the assessee company did not avail of opportunity to justify the claim of deduction u/s 32AB. As the case has already been completed for A. Y. 95- 96 u/s 143(3)/254 and in other assessment years there is no mistake apparent from record as discussed above, the application for rectification is hereby rejected for all the assessment years. 3.8. Aggrieved, against the order of assessing officer, assessee filed first appeal. CIT(A) allowed the appeals by following observations: "I have gone through the various orders brought on record for A.Ys. 1995-96 to 1998-99. There is no dispute with regard to surrendering of income of Rs. 94.25 lacs which was claimed u/s 32A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand contends that: (i) assessing officer has considered the ITAT direction in a self convenient and pedantic manner. The last line of the ITAT direction has been conveniently ignored i.e. "to make appropriate modification of assessed income". The assessing officer has failed to make any modification at all leave apart from the appropriate modification. (ii) The assessing officer has thus failed to abide by the ITAT direction to consider the issue of double taxation and make appropriate modification of assessed income. (iii) The dispute in question about taxability is glaring from the record. The taxation authorities cannot recourse to unjust enrichment by taxing the income in a double taxation manner qua the same transaction. When the assessee offered for withdrawal of claim of deduction u/s 32AB, citing the reason of cancellation of lease arrangement, the other side of the coin a natural consequence is that transaction having not materialized the lease rental is neither accrued nor earned. This is further evident from the fact that assessee has filed a suit in Hon'ble Delhi High Court in this behalf. (iv) The income which has neither accrued nor earned cannot be brou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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