2011 (1) TMI 50 - AT - Income Tax

Non-disposal of an additional ground - there was no recording in order sheet entry admitting the extracted additional ground - no argument recorded in log book from both the sides on the merits of the this ground, there is not even any mention of the prayer for the admission of additional ground or the objections of the ld. DR to its admission - In the absence of its admission, there is no scope for contending that there was a mistake, much less the mistake apparent from record, in not adjudicating the same in the order of the tribunal, warranting any rectification u/s. 254(2) of the Act - application dismissed

Summary

Issues:
Failure to dispose of an additional ground raised by the assessee in the appeal.

Analysis:
The judgment revolves around a misc. application filed by the assessee against a Tribunal order for the A.Y. 2002-03. The assessee contended that an additional ground regarding deduction under section 35(2AB) was inadvertently omitted to be disposed of by the bench. The ld. DR argued that since no such issue was raised during the appeal hearing, it could not be considered a mistake apparent from the record. The Tribunal noted that the said ground was not argued by the assessee during the hearing, and no submission was made by the ld. DR on this issue, indicating that it was not pressed by the assessee.

The judgment emphasized that any ground raised in the memorandum of appeal must be necessarily disposed of by the appellate authority. If an appellant fails to prove the incorrectness of the order on a particular issue, that ground is dismissed. The onus of proving the impugned order wrong is on the appellant, and failure to dispose of a ground constitutes a mistake apparent from the record. The appellant can apply for rectification in such cases, and the appellate authority is duty-bound to rectify the order.

Regarding the admission of additional grounds, the judgment highlighted that the appellant must seek leave of the Tribunal to argue on grounds not set forth in the memorandum of appeal. The appellant needs to demonstrate reasons for not raising the additional ground earlier, and if the ground satisfies certain tests, it may be admitted after considering objections from the respondent. If an additional ground is not admitted, the tribunal is not obligated to consider it for disposal on merits. In the case at hand, as there was no recording admitting the additional ground and no arguments presented for its admission, the Tribunal concluded that there was no mistake apparent from the record warranting rectification.

In conclusion, the misc. application was dismissed as the additional ground was not argued for its admission, and there was no scope for contending that there was a mistake in not adjudicating it in the tribunal's order, as per the provisions of the Act.