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TMI Blog2015 (10) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed authority does not warrant any interference. We find that the incurring of expenditure has not been doubted. Respectfully following the order of the Tribunal the departmental appeal is dismissed. Since the relief granted by the CIT(A) has been confirmed by us on the reasoning that non-adjudication of the specific ground in appeal by the CIT(A) in his order dated 12.01.2011 which necessitated the filing of rectification petition u/s 154 cannot be said to an act of reviewing the order as admittedly in the order dated 12.1.2011 mistake rectifiable u/s 154 had occurred which was corrected in the order dated 16.2.2012. Thus, since the order dated 16.2.2012 has been confirmed the assessee’s appeal becomes infructuous.- Department appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the revised ground no. 3(iii) before the CIT(A) remained un-adjudicated by mistake as such the same may be decided. 3. Both the parties qua their respective appeals have been heard and as far as the non-adjudication of the specific ground before the CIT(A) is concerned. This fact is not disputed. 4. We have heard the rival submissions and considered the material available on record including information obtained under the RTI by the assessee which has been considered by the CIT(A) and the order dated 20/02/2009 of the Tribunal in assessee s own case on similar facts and circumstances on which reliance has been placed by the ld. AR. 5. The specific argument of the ld. Sr. DR was that he relies on the assessment order as on going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate order dated 12.01.2011, the issue regarding allowability of deduction u/s 35 for expenditure on scientific research was decided in para 6.1 of the order. The decision was based on the remand report of the AO dated 11.08.2006, in para (ii) of which, the AO submitted that, As directed by the ld. CIT(A) by his order in appeal No. 147/96-97 dated 12.12.1999, a reference has been made on 11.08.2006 to the prescribed authority for their decision in the matter . This was the sole reasons distinguishing the facts of appellant s case for AY 2003-04 from AY 2004-05 wherein the Hon ble ITAT had allowed the claim of deduction for expenditure on scientific research when no reference was made by the AO. In view of the contentions raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. The case records are returned herewith in 4 volumes. 3.1 The AO, vide letter F.No. ACIT/C-II/FBD/2011-12/6190 dated 30.01.2012 has submitted as under: In this connection, it is submitted that on request of the assessee all possible efforts were made by this office to locate the said relevant record/letter but unfortunately the said particular record has not been located till date though assessment records for the AO 1993-94 in four volumes is available, which was also submitted to your goodself vide letter dated 14.12.2011 . 3.2 The appellant has also sought information under Right to Information Act and a copy of information submitted by the AO is filed on record. On examination of case records, the report of the AO and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar issue came up for consideration before the Punjab Haryana High Court in the case of CIT vs. FCS International Marketing Pvt. Limited, 283 ITR page 32 (P H), wherein their Lordships came to the following conclusion: 6. We are unable to agree with ld. Counsel. It is manifestly clear from the impugned order that the Tribunal s conclusion that the Assessing Officer was duty bound to refer the matter to the specified authority for its opinion, not only because of a specific direction to that effect by the Tribunal in its earlier order but also on account of the provisions of sub-section (3) of section 35 of the Act. It provides that if any question arises under this section as to whether, and if so, to what extent, any activity constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant any interference. We find that the incurring of expenditure has not been doubted. Respectfully following the order of the Tribunal the departmental appeal is dismissed. Since the relief granted by the CIT(A) has been confirmed by us on the reasoning that non-adjudication of the specific ground in appeal by the CIT(A) in his order dated 12.01.2011 which necessitated the filing of rectification petition u/s 154 cannot be said to an act of reviewing the order as admittedly in the order dated 12.1.2011 mistake rectifiable u/s 154 had occurred which was corrected in the order dated 16.2.2012. Thus, since the order dated 16.2.2012 has been confirmed the assessee s appeal becomes infructuous. 8. In the result, the appeal of the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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