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TMI Blog2015 (8) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 - SUPREME Court), the Supreme Court held that even if an item of debit is considered as an expenditure, it should further be such an expenditure contemplated in sections 30 to 43A and, therefore, unless there was a specific prohibition for such an allowance, the departmental authorities would not be justified in adding back the amount under rule 5(a) - Decided in favor of the assessee Deduction for pre-operative expenses - CIT(A) has dismissed this ground for the reason that assessee did not make this claim in the return and also did not file revised return - Held that:- If assessee is making a claim it will be within the power of Appellate Authorities to entertain such claim without making such claim in the return of income or without filing revised return. The case law of CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd , [2012 (7) TMI 158 - BOMBAY HIGH COURT ] as relied upon by the assessee is applicable to the facts of the case, therefore, in the interest of justice we restore this matter back to the file of AO to examine the claim of the assessee and decide the same as per law after giving the assessee a reasonable opportunity of hearing. - Decided in favor of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 2. Apropos Ground No.1 of Departmental appeal, the same was stated to be covered by the decision of the Tribunal in assessee's own case and reference was made to the order dated 17/09/2010 in ITA No.338/Mum/2009 for assessment year 2004-05, wherein similar issue was raised by the assessee regarding taxability of profit on sale of investment and Tribunal has held that profit on sale of investment in the case of the assessee cannot be brought to tax. It was pleaded that facts and circumstances of the present year are same as were for assessment year 2004-05. Copy of the said order was also placed on our record and was also given to Ld. DR. Ld. DR after going through the decision of the Tribunal stated that facts and circumstances are same. However, he relied upon the order passed by AO. 2.1 We have heard both the parties and their contentions have carefully been considered. After careful consideration we find that the issue is covered by the aforementioned decision of the Tribunal and while giving relief Ld. CIT(A) has referred to the aforementioned order, relevant portion of which has already been reproduced in the order of Ld. CIT(A) and it is also reproduced below for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3.1 According to facts of the present case, the assessee has amortized debit securities for ₹ 3,27,69,854/- involving bonds/investments and debit securities and claimed as deduction in the return of income claiming that premium/discount relating to the securities is amortized over a period till the maturity. The AO did not agree and reject the claim of the assessee. Ld.CIT(A) has accepted the claim of the assessee on the basis of aforementioned decision of ITAT in the case of TATA AIG General Insurance vs. ACIT(supra) and referred to the following observations of the Tribunal: 7. On a careful consideration of the facts and the rival contentions, we are of the view that the amortization claim cannot be considered as an expenditure or allowance within the meaning of rule 5(a) of the First Schedule. As held by the Supreme Court in the case of Indian Molasses Co. (Private) Ltd. vs. CIT, West Bengal (1959) 37 ITR 66 (SC), spending in the sense paying out or away of money is the primary meaning of expenditure. Expenditure is what is paid out or away and is something which is gone irretrievably. Expenditure, which is deductible for income tax purposes, is one which is towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard both the parties and their contentions have carefully been considered. Ld. DR did not dispute the contention of Ld.AR that the issue is covered by the aforementioned decision of Tribunal in the case of TATA AIG General Insurance vs. ACIT (supra). In this view of the situation, respectfully following the said decision, we hold that Ld. CIT(A) did not commit any error in accepting the claim of the assessee and this ground of the Revenue is dismissed. Assessee's Appeal: 4. Apropos ground No.1 2, it was submitted by Ld. AR that the issue was raised by the assessee before Ld. CIT(A) as additional ground and Ld. CIT(A) had forwarded the matter to the AO. It was the contention of assessee that this issue is also covered by the aforementioned decision in the case of TATA AIG General Insurance vs. ACIT (supra). The AO did not agree and in the remand report he submitted that the said decision of the Tribunal has not been accepted by the Revenue and Revenue's appeal is pending in the High Court. After considering all these submissions Ld. CIT(A) has dismissed this ground for the reason that assessee did not make this claim in the return and also did not file rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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