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TMI Blog2024 (3) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... ional grounds raised - expenses on windmill be allowed as Revenue expenditure - ITAT had restored the issue back to the Assessing Officer ( AO ) for fresh consideration and AR/Assessee states, the AO, while giving effect to the order of the ITAT has allowed depreciation on windmills and, therefore, this will be a non-issue. Thus assessee agreed. Allowability of entertainment expenditure food subsidy coupons disallowed u/s 37(2), expenses related payments to schools disallowad u's 40A(9) and advertisement expenditure (deferred revenue) as revenue expenditure - HELD THAT:- Tribunal had relied on assessee s own case for AY 1996-97 and Revenue had not challenged the decision of the ITAT. Mr. Srihari submitted, relying on the decision of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff is only allowable if the assessee offers the same as income in previous years, which the assessee failed to prove? b) Whether on the facts and circumstances of the case and in law, the ITAT was right in setting aside the issue of write off of investment on windmills as revenue expenditure by the assessee, when the facts are already available with the tribunal and the issue could have been decided on merit? c) Whether on the facts and circumstances of the case and in law, whether the ITAT was right in setting aside the issue of disallowance of deduction claimed on debenture redemption that such reserve is unascertained liability for the assessee and is deserved to be added to the net profit for computation of book profit? d) Whether on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the same and also Mr. Suresh Kumar agrees. 4. As regards the second question proposed, assessee had claimed by way of additional grounds that the expenses on windmill be allowed as Revenue expenditure. The ITAT had restored the issue back to the Assessing Officer ( AO ) for fresh consideration and Mr. Srihari states, the AO, while giving effect to the order of the ITAT has allowed depreciation on windmills and, therefore, this will be a nonissue. Mr. Suresh Kumar agrees. 5. As regards the 3rd question, the Tribunal has directed the Commissioner of Income Tax (Appeals) [CIT(A)] to admit the additional ground and decide the issue on merits. Mr. Srihari states, the matter is still pending before the CIT(A). 6. We direct the CIT(A) to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of that that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of a setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. 30. Reference was also made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it. 32. Thirdly, the real question concerning us is the year in which the assess is required to pay tax. There is no dispute that in the subsequent accounting year, the assessee did make imports and did derive benefits under the advance licence and the duty entitlement pass book and paid tax thereon. Therefore, it is not as if the Revenue has been deprived of any tax. We are told that the rate of tax remained the same in the present assessment year as well as in the subsequent assessment year. Therefore, the dispute raised by the Revenue is entirely academic or at best may have a minor tax effect. There was, therefore, no need for the Revenue to continue with the litigation when it was quite clear that not only was it fruitless (on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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