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TMI Blog2011 (1) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per R.S. Syal, Accountant Member : This misc. application has been filed by the assessee against the captioned Tribunal order dated 30-11-2009 for the A.Y. 2002-03. The ld. A.R. contended that the assessee raised an additional ground reading as under, which was inadvertently omitted to be disposed of by the bench : "The appellant submits that the learned Commissioner (Appeals) ought to have allowed an additional deduction under section 35(2AB) of Rs.3,29,90,702, being 50% of the total in house research and development expenditure of Rs. 7,85,81,403 incurred by the appellant during the previous year". 2. Countering these submissions, the ld. DR stated that, during the course of hearing of the appeal, no such issue was ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vinced and does not press the same before the appellate authority. Such a ground is dismissed as not pressed. There may be still another situation in which a ground is raised but during the course of hearing, no submission is made in support of that ground. Such ground also meets with the fate of dismissal. The difference between the aforesaid two situations is clear. Whereas in the first, the appellant does not expressly press its ground, but in the second, when no submission is made, it is impliedly taken as not pressed. It is manifest that the onus of proving the impugned order as wrong to the extent appealed against, is always on the appellant. If it is not proved as wrong, either expressly or impliedly, the order is not disturbed. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no vested right to the appellant to argue on any ground, not raised in the memo of appeal. If the party in appeal wants to take up any ground, other than those not mentioned in the appeal memo, it needs to seek the leave of the tribunal. It, therefore, transpires that before any additional ground qualifies to be dealt with at par with those taken in memo of appeal, it has to necessarily cross the hurdle of its admission. Thus it becomes vivid that the additional ground raised by the appellant is firstly taken up for admission. The appellant has to demonstrate the reasons for which it could not be taken up earlier. If the additional ground satisfies the tests laid down by the Hon'ble Courts, such as, the ground involving only a que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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