2004 (11) TMI 291

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....nditure on articles for which the assessee has not discharged its onus of providing primary facts and evidence. 3. On the facts and in the circumstances of the case, the learned CIT(A) erred in holding that the assessee-company was eligible for deduction under s. 80-O of the IT Act, 1961, and not following the order of CIT(A)-VII, New Delhi, in appeal No. 176/1997-98, dt.3rd March, 1994, for asst. yr. 1994-95 on the same issue. 4. The order of the AO may be restored and the order of the CIT(A) may be set aside with respect to the abovementioned grounds. 2. We have heard the rival submissions and carefully perused the orders of the authorities below and documents placed on record. 3. Apropos ground No. 1, it was contended on beha....

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....g himself with evidence that the assessee has incurred 50 per cent of the expenditure for business promotion. Since the assessee has claimed that this expenditure was incurred for business promotion, the onus is strictly upon it to prove these facts by filing the details of gifts and articles or some other evidence. Since the assessee has failed to discharge its onus which primarily lay upon it, the CIT(A) was not justified in allowing the claim to the extent of 50 per cent of total claim. 6. The learned counsel for the assessee, on the other hand, placed reliance on the order of the CIT(A). 7. Having carefully perused the record, we find that the details of gifts and articles were not filed before the lower authorities to prove that ....

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....ld be decided in this year independently without taking into consideration the decision of the CIT(A) for asst. yrs. 1994-95 and 1995-96. 9. Having considered the rival submissions and from careful perusal of the record, we find that in asst. yrs. 1994-95 and 1995-96, similar claim was disallowed by the AO which was later on confirmed by the first appellate authority. Since the assessee is not able to tell the fate of the disallowance, we are forced to presume that it might have been accepted the order of the CIT(A) or the Tribunal has also confirmed the disallowance. In these circumstances, if the disallowance has been confirmed in the earlier years, the same reasons should be followed in this year in view of the rule of consistency. No....