2008 (1) TMI 100 - HC - Income Tax

Correctness of the order passed by Tribunal - when it is admitted that the appeal folder on the file of tribunal, did not contain the additional ground, necessarily this petition is required to be rejected and rightly the Tribunal has rejected the petition - If the revenue is entitled to file an appeal by raising the issue as to the allowability of Section 80IA under the statute, it is well open to the revenue to do so, if they so advised - appeal is dismissed as no question of law is involved

Summary

Issues:
1. Dismissal of Miscellaneous Petition by Tribunal
2. Consideration of additional ground in appeal

Issue 1: Dismissal of Miscellaneous Petition by Tribunal
The appeal was filed by the revenue against the order of the Income Tax Appellate Tribunal, challenging the dismissal of a Miscellaneous Petition (M.P.) filed by the revenue. The M.P. was filed due to the contention that an additional ground regarding the allowance of deduction under Section 80IA was not considered by the Tribunal while disposing of the appeal. The Tribunal, after perusing the appeal folder, found that no such additional ground had been raised or received by them. The revenue claimed that the assessing officer had indeed raised the additional ground, but it was not available in the appeal folder of the Tribunal. The Tribunal, based on the factual finding, rejected the M.P., stating that if the revenue wished to file an appeal raising the issue of Section 80IA's allowability, they were free to do so.

Issue 2: Consideration of additional ground in appeal
The assessing officer, during the assessment for the year 1997-98, had restricted the deduction under Section 80IA to business income, excluding income from other sources. The assessee appealed to the Commissioner of Income-tax (Appeals), who ruled in favor of the assessee regarding Section 43B. The revenue then appealed to the Tribunal, but did not raise the issue of Section 80IA. Subsequently, during the appeal process, the revenue filed an additional ground contesting the deduction under Section 80IA. However, the Tribunal found no record of such additional ground being raised or received by them. The Tribunal dismissed the appeal as no question of law was involved, emphasizing that if the revenue wished to raise the issue of Section 80IA's allowability, they were free to file a separate appeal.

In conclusion, the High Court upheld the Tribunal's decision to dismiss the Miscellaneous Petition, as it was found that the additional ground regarding Section 80IA's deduction was not raised or considered during the appeal process. The Court clarified that if the revenue desired to challenge the allowability of Section 80IA, they were at liberty to file a separate appeal on the matter.