The main legal point established in the judgment is the interpretation of the provisions of S.33A of the Income Tax Act and the rejection of the application of the doctrine of constructive res judicata to a taxing statute.

V.P. Gopalan Nambiyar, J.

1. The question of law referred for our opinion by the Income Tax Appellate Tribunal, Cochin Bench, under S.256(1) of the Income Tax Act, is:

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was not entitled to Development Allowance at 50 per cent on the sum of Rs. 71,500 being a part of the expenditure incurred during the assessment years 1966-67 and 1967-68 on 1967 Tea clearing under the provisions of S.33A of the Income Tax Act for the assessment year 1971-72 ?"

2. The statement of facts sent up by the Tribunal shows that the Assessee is a Company having income from tea and coffee estates. The accounting year in question ended on 31st March 1971. The preliminary clearing of the land and planting with tea bushes was done in July 1967, during the accounting period for the year ended 31st October 1967. The expenses for that year and for the subsequent year ended 31st October 1968. Could have been considered for development allowance under S.33A(1)(a) of the Act in the second assessment year, i.e., 1969-70. In the succeeding two years, i.e., the third and fourth year of clearing and planting, the claim for development allowance would again come up for consideration. The statement of the case discloses that the relevant figures relating to the claim for development allowance are as follows:

"1967 Tea clearing-Planting July 1967 (13.63 hectares).
1st Year 1966-67 2nd Year 1967-68 Total	44,525 45,275
	89,800
Less cost of clearing to be considered in the 4th Year i.e., A.V. 1971-72 50 per cent thereof Balance of expenses four which no claim was made	71,500
	18,300  9,150 71,500
5. For the year 1971-72, the fourth year of 1967 clearing the further expenses incurred were:-
3rd Year 4th Year		26,832 35,172
		62,004

To this was added the expenditure of 1st and 2nd year not covered by claim in that year of Rs. 71,500. In 1969 there was another clearing of 3.59 hectares for which 1971-72 would be the 2nd year. The expenses incurred were Rs. 33,861. In that year the company claimed development allowance on the following figures:-

1957 Clearing:
Unclaimed expenses of 1967 and 68 Expenses of 1969 and 70 1969 Clearing:   50 per cent thereof	71,500 62,004 33,861
	167,365 83,682

The Company had created a reserve of Rs. 70,000." The Income Tax Officer allowed the claim in respect of the year 1969 clearing i.e., in respect of the first and the second year. For 1967 clearing, he took into consideration, the expenses in respect of the third and fourth years. The Assessee's claim included a part of the expenses of the first and second year. This was not admitted by the Income Tax Officer, as according to him, the necessary reserve for claiming the expenses had not been provided for by the Assessee. The Assessee chose to carry forward this expenditure claiming the development allowance in the assessment year 1971-72. This, the Officer disallowed. The Appellate Assistant Commissioner concurred on appeal, observing, that the expenditure incurred in the first two years should be claimed deduction of in the second year, and only the balance of expenditure, not taken into account in the first two years, could be claimed in the fourth year. He was of the view that if the assessee chose to make a claim only for a portion of what he was entitled to, in the first two years, instead of the whole which he ought to have claimed, he would be precluded from claiming the omitted portion in the fourth year. The claim for development allowance, according to him, had to be made and allowed in the particular assessment year to which it relates. On further appeal, the Tribunal agreed with the view of the Appellate Assistant Commissioner. The reasons are g