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TMI Blog1992 (4) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment of the ground of appeal and also statement of facts. He drew the attention to Annexure-A which is to be added after paragraph 2 of the statement of facts and Annexure-B which relates to ground of appeal No. B, to be inserted after ground of appeal No. B. Shri Hidayatullah referred to exhibit-B attached with the appeal memo which is also the appeal memo filed before Collector (Appeals). He pleaded that on internal page 10 appears the ground of appeal No. 5 which appears on internal page 5 of appeal memo filed before Collector (Appeals) and the appellants have agitated that "the Assistant Collector failed to appreciate that an uninterrupted power supply system as such is immovable property and not goods at all and that, therefore, no excise duty could in law be imposed or charged on the same". He also drew the attention of the Bench to the order passed by Collector (Appeals) which is exhibit 'C' of the appeal memo and the Collector (Appeals) has not given any finding. Shri Hidayatullah argued that inadvertently this ground of appeal could not be taken up due to oversight. He argued that in other appeals, for example, appeal Nos. 2328, 2329/88-A, this ground of appeal No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner cannot travel beyond the subject matter of the assessment. In other words, the power of enhancement under Section 31(3) of the Act is restricted to the subject matter of assessment or the sources of income which have been considered expressly or by clear implication by the Income-tax Officer from the point of view of the taxability of the assessee." In the matter before us, the Collector (Appeals), has not come with any finding on this ground of appeal. 5. Hon'ble Andhra Pradesh High Court in the case of Commissioner of Income-tax v. Gangappa Cables Ltd., reported in 116 ITR 778 had held as under :- The Appellate Tribunal disposing of an appeal under the I.T. Act has got the power to allow the assessee to put forward a new claim, notwithstanding the fact that such a claim was not raised by him before the I.T.O. or the A.A.C., provided there is sufficient material on record to allow such a claim. The assessee, for the first time, raised a plea in second appeal before the Appellate Tribunal that the expenditure incurred by the assessee before it went into commercial production was an admissible deduction for the purpose of S. 80J(I) the I.T. Act. The revenue resist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ground of appeal earlier. We order that after statement of facts, as set out in Annexure 'A' to the Miscellaneous application should be added after paragraph 2 of the statement of facts at page 8 of the appeal and before paragraph 3. Paragraphs 2A, 2B, 2C, 2D, 2E and 2F should be added as mentioned in Annexure 'A'. After ground of appeal B of the grounds of appeal and before ground of appeal No. C, ground of appeal No. B1 should be inserted as shown in Annexure 'B'. 9. In the result, the Miscellaneous applications are allowed. 10. [Assent per : S.L. Peeran, Member (J)]. - I have gone through the order prepared by learned Vice-President (as he then was) now President and I would like to add the following paragraphs. 11. Shri Prabhat Kumar, learned D.R. has raised a very important question in this matter i.e. that the ground now sought to be introduced by the appellants, is a question of excisability and classification which has not been raised at the time of filing the classification list nor at the time of filing the price list. The appellants had admitted the goods to be excisable and had been clearing the same on payment of duty. In the various price lists filed by them, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e already in the pleading sought to be amended [Krisandas Rupchand v. Rachappa Vithoba 1909 ILR 33 (Bom) 644 at p. 651 approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda 1957 SCR 595 (603); AIR 1957 SC 363 at p. 366]. 9. The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill (1873) 8 CP 107 (116) in a different context, for if it were so, no material fact could ever be amended or added [and, of course, no one would want to change (sic)] or add an immaterial allegation by amendment. That expression for the present purpose only means a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. 1962-2 All E.R. 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas'. Doman v. J. W. Ellis and Co. Ltd. 1962-1 All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. In Charan Das v. Amirkhan 47 Ind App 255 (AIR 1921 PC 5) (A) the Privy Council observed: "That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case". Vide also Kisan Das v. Rachappa ILR 33 Bom. 611 (B)." 12. The Tribunal also took a similar view in the case of Merinoply & Chemicals Ltd. v. Collector (1988 (35) E.L.T. 654] in para 2 which is as under - "The appellants have now pleaded that the sanding machine imported by them came without the two standard belt drive motors of 22 kw each and that is why their import price was low. Since the fresh plea is a plea of fact which was never taken at the earlier stage and hence not subjected to verification by the authorities, the same cannot be allowed to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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