2011 (11) TMI 431 - HC - Income Tax

Whether the Tribunal was right in dismissing the application u/s 254(2) on ground that issue was not raised before the CIT (Appeals), when CIT(A), did not examine and decide the ground in his order - issue relates to deduction u/s 36(1)(viii) Held that - We are satisfied that the appellant had raised the issue before the CIT (Appeals) and accordingly the appellant had raised the ground in the appeal before the Tribunal that the claim u/s 36(1)(viii) was not considered by the CIT (Appeals) and was not decided by him. Once a question/ground is raised but not decided, it arises and failure to decide can be made the subject-matter of the appellate proceedings. Therefore, no application to raise an additional ground was required to be filed before the Tribunal. Therefore, order of dismissal is set aside and it is directed that the Tribunal will decide the aforesaid ground of appeal Decided in favor of assessee.

Summary

Issues:
1. Dismissal of application under section 254(2) by the Tribunal.
2. Discrepancy in deduction under section 36(1)(viii) for assessment year 2003-04.
3. Failure of Commissioner of Income-tax (Appeals) to consider a specific ground in the appeal.
4. Tribunal's decision to remit the matter back to the Assessing Officer.
5. Dismissal of application under section 254(2) by the Tribunal regarding the deduction under section 36(1)(viii).

Issue 1: Dismissal of application under section 254(2) by the Tribunal:
The appellant, a corporation, filed an application under section 254(2) of the Act after the Tribunal dismissed the application regarding the deduction under section 36(1)(viii). The Tribunal's reasoning for dismissal was based on the appellant's failure to raise the specific ground before the Commissioner of Income-tax (Appeals). However, the appellant had indeed raised the ground before the Commissioner of Income-tax (Appeals), as evidenced by Ground No. 4 in the appeal. The Tribunal's decision to dismiss the application was found to be incorrect, as the appellant had raised the necessary ground, and failure to decide on it allowed the issue to be taken up in the appellate proceedings.

Issue 2: Discrepancy in deduction under section 36(1)(viii) for assessment year 2003-04:
The Assessing Officer had initially computed the deduction under section 36(1)(viii) at a lower figure than claimed by the appellant, citing differences in computation methods. The appellant had computed the deduction on a gross basis, while the Assessing Officer did so net of expenses, resulting in the variance. This discrepancy led to further appeals and discussions regarding the correct computation method for the deduction under section 36(1)(viii).

Issue 3: Failure of Commissioner of Income-tax (Appeals) to consider a specific ground in the appeal:
The Commissioner of Income-tax (Appeals) did not address a crucial ground raised by the appellant in the appeal related to the deduction under section 36(1)(viii). This failure to consider the mentioned ground prompted the appellant to escalate the matter to the Tribunal for resolution, highlighting the importance of addressing all raised issues in the appellate process.

Issue 4: Tribunal's decision to remit the matter back to the Assessing Officer:
The Tribunal, in a related case for the assessment year 2002-03, decided to remit the matter of deduction under section 36(1)(viii) back to the Assessing Officer for further examination. This decision was based on a previous order concerning the same issue for the assessment year 1996-97, indicating a pattern of reconsideration and reevaluation of the deduction calculation methodology by the authorities.

Issue 5: Dismissal of application under section 254(2) by the Tribunal regarding the deduction under section 36(1)(viii):
The Tribunal's dismissal of the application under section 254(2) by the appellant concerning the deduction under section 36(1)(viii) was found to be erroneous. The appellant had raised the necessary ground before the Commissioner of Income-tax (Appeals), and the failure to address it necessitated its consideration in the appellate proceedings. The Tribunal's rationale for dismissal based on the ground not being raised before the Commissioner of Income-tax (Appeals) was debunked, as the appellant had indeed brought up the issue for consideration.

In conclusion, the judgment addressed various issues surrounding the deduction under section 36(1)(viii) for the assessment year 2003-04, highlighting discrepancies in computation, failures in addressing raised grounds by the authorities, and the necessity of proper consideration and resolution of tax-related matters through the appropriate appellate channels. The decision to set aside the impugned order and direct the Tribunal to address the specific ground of contention underscored the importance of procedural correctness and thorough examination in tax dispute resolutions.