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TMI Blog2013 (3) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, the Tribunal was justified in directing the A.O. To re-compute the interest already offered in earlier years, which have become final and directing the same to be set off against current years income ? II. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in not deciding the issue on the merits and allowing the expenditure of Rs.74,23,000/ claimed by the assessee u/s.35D of the I. T. Act on the ground that such claim was not disallowed in earlier years and thereby allowing to perpetuate an error on the face of very clear and undisputed provision of law ? III. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the disallowance made on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit be granted. 5.2 It is an undisputed position that claim under Section 35D of the Act did not arise for consideration for the first time. Since last several years, the Assessing Officer had granted such claim on the same consideration. The Tribunal therefore, correctly held that such claim could not have been suddenly disallowed. We may refer to a decision of this Court in case of Saurashtra Cement Chemical Industries Ltd. V. Commissioner of Income-tax, Gujarat, reported in [(1980) 123 ITR 669], wherein, in the context of successive claim of tax holiday, the Court held that the ITO was not justified in refusing to continue the benefit of such tax holiday granted to the assessee in the earlier years, without disturbing the relief grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed DR that the assessee had purchased the equipments for the economic life of the plant itself and not more than that. As a matter of fact, it is not a case, as is appearing from different clauses of the lease deed that the equipments leased will be returned back to the lessor after the expiry of the lease. Nothing has been brought to disapprove the said clauses of the lease deed by any of the authorities below or by the learned DR. The learned DR could not prove that in fact the assessee is only a financier and is not interested in the assets and therefore, it cannot be said as full payout lease. Therefore, in the circumstances and facts of the case, the arguments made by the learned DR cannot be accepted and following the rule of consiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low or by the learned DR. The learned DR could not prove that in fact the assessee is only a financier and is not interested in the assets and therefore, it cannot be said as full payout lease. Therefore, in the circumstances and facts of the case, the arguments made by the learned DR cannot be accepted and following the rule of consistency, the assessee deserves to be allowed the claim and we direct the AO accordingly to allow the claim of the assessee. The order of the learned CIT(A) is reserved. Thus, Ground No.12 of the assessee s appeal is allowed. 7.1 From the above, we noticed that one of the prime factors which weighed with the Tribunal was the rule of consistency. Learned counsel for the assessee rightly pointed out that such claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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