9911796707
TMI Blog1990 (2) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. The Hon'ble Full Bench in the case of Gedore Tools (India) (P.) Ltd. v. IAC [1988] 25 ITD 193 (Delhi) vide order dated25-3-1988have held by a majority view that cash compensatory support is not taxable." 2. The assessee's application raises an interesting point because neither the assessee has filed any cross appeal against the order of the Commissioner of Income-tax (Appeals) referred to above nor has it chosen to file any cross objection to the appeal filed by the department. At the time of the hearing, we persistently asked Shri O.P. Dua, the learned counsel for the assessee as to whether the assessee wanted to file any cross appeal or cross objection (which had by then become barred by limitation) after seeking condonatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order appealed against on any of the grounds decided against him." This would also suggest that a respondent who had not filed any appeal or cross objection himself can only support the order appealed against by the other side and cannot raise any fresh ground himself. This would also be easily understandable because a party who has filed an appeal cannot be placed in a worse position than what it would have been in, had it not filed the appeal. If the department had not filed any appeal against the order of the CIT(Appeals) the respondent i.e. the assessee could not have made any application and it had to file an appeal itself if it was seeking an independent remedy. It is needless to say that what cannot be done directly is also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urge before the Tribunal even though the assessee had not preferred an appeal. It is in this context alone that the observation made by the Bombay High Court was that the Tribunal had the discretion to allow any party to an appeal, may be the appellant or the respondent, to raise a new point or new contention. Therefore, no advantage can be taken by the assessee in quoting the observation of the Hon'ble High Court divorced from its context. The decision therefore, does not really support the assessee's case. No doubt in the case of CIT v. Edward Keventer (Successors) (P.) Ltd. [1980] 123 ITR 200, Delhi High Court held that in the assessee's appeal to the Tribunal challenging profit from transaction the contentions sought to be raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary rule, in the absence of a cross appeal or cross objection by a respondent, the Appellate Court has no power to disturb the decree of a lower Court so far as it is in favour of the appellant. In the absence of a cross appeal or a cross objection by a respondent, the Appellate Court cannot grant any relief to the respondent except insofar as such relief is incidental to the relief granted to the appellant. We may also in this connection refer to an other provision namely, O. XLI, r. 33 of the Code of Civil Procedure which provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross the threshold first i.e. get over the difficulty in the entertainment of the ground sought to be raised. The decision of the Supreme Court in the case of Mithilesh Kumari v. Prem Behari Khare [1 989] 177 ITR 97 referred to on behalf of the assessee is not relevant on the point at issue before us. Having regard to the above, we are of the clear view that the instant application moved by the assessee is entirely misconceived and that it has to be rejected. However, before parting with the discussion, we would record the fact that valiant efforts were made by the learned counsel for the assessee Shri O.P. Dua to press his point. 4. The application filed by the assessee respondent is rejected. The appeal may now be posted in due course f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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