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TMI Blog2015 (6) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the revenue ought to have filed an amendment application placing reliance upon Section 37 of the Act. We find that the Tribunal has disposed of the appeal without considering the contentions of the parties before it. The Tribunal was obliged to adjudicate upon the appeal on the basis of the grounds made out by the parties and on examination of the same could have either upheld the order of the Commissioner of Income Tax (Appeals) or set it aside. However, it is not open to the Tribunal to dismiss the appeal without examining the contention of the parties on a ground which is not urged by any of the parties. We also find that the issue raised by the appellant Revenue with regard to allowing the payment of ₹ 13.20 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the fact that Section 40A of which subsection 40A(2)(b) is a part, is a non-obstante clause, thereby overriding all the provisions pertaining to computation of income under Chapter, IVD, which includes section 37(1), also and thus there is no contradiction in the Assessing Officer's finding that the expenditure claimed by the assessee under Section 37(1) of the Act on account of the alleged reimbursement of expenses is disallowable in view of the overriding provisions of Section 40A(2) (b) of the Act. 5. The respondent assessee had paid an amount of ₹ 78.19 lacs to its sister company as corporate management fee, project management fee, postage, bank charges, telephone expenses, repairs and maintenance and other sundry expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0A(2) (b) but ended up saying that the expenses are vouched and makes an adhoc disallowance of 10% on ₹ 64,99,029/-. Sections 40A(2)(b) and 37, have different roles to play. 9. Since neither of the contending parties are on same issue, as to which provision to be followed, even at the time of hearing the department did not ask for the amendment in the grounds, we feel that the appeal filed does not, in effect emanate from the assessment order, hence the appeal filed by the department is at infirmity, hence the same is rejected. 8. It is a common contention of the parties that, it is Section 40A(2)(b) of the Act which was invoked by the Assessing Officer while passing the assessment order and the challenge to the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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