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TMI Blog2011 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... Versus Mahalakshmi Textile Mills Limited (1967 -TMI - 5045 - SUPREME Court) noticed that the Appellate Tribunal was competent to pass such orders on the appeal “as it thinks fit” as empowered and mandated by Section 33(4) of the Indian Income Tax Act, 1922. It was held that the Tribunal had not exceeded its jurisdiction. - Decided in favour of assessee. - ITA No.1118/2011 - - - Dated:- 25-11-2011 - MR. SANJIV KHANNA MR. R.V. EASWAR JJ. Represented by: Mr. Ajay Vohra with Ms. Kavita Jha, Advocates. For Appellant Mr. Sanjeev Rajpal, Advocate For Respondent SANJIV KHANNA, J. (ORAL) : This appeal under Section 260A of the Income Tax Act, 1961 ( Act for short) impugns the order dated 26.6.2009 passed by the Income Tax Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found by the ld. CIT(A) that the other two expenses of Rs.10,75,297/- and Rs.10,14,599/- (total amounted to Rs.2,08,98,967/- pertained to two other projects, namely, GSB-WMM Project and Panogarh Palsit, where the construction was of temporary sheds. The AO was directed to allow depreciation @ 100% on these two sites. 3. xxx 4. xxx 5. We have heard the parties and have perused the material on record. The Tribunal order in the assessee s own case for assessment year 1998-99 is at pages 10 to 27 of the assessee s paper book ( APB for short). In that year, as observed in para 6 of the Tribunal order, the structures were admittedly of temporary nature and they were constructed on the land which did not belong to the assessee. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Ltd., reported as (1967) 66 ITR 710. 4. It is not possible to accept the contention of Mr.Vohra. An appeal under Section 260A of the Act is maintainable against every order passed by the Tribunal, where High Court is satisfied that a substantial question of law is involved. A contention/ issue, which is not raised, dealt with or answered by the Tribunal, cannot be raised before the High Court for the first time in an appeal under Section 260A of the Act. A contention/question raised and answered by the Tribunal or dealt with by the tribunal suo motu and a question/issue which was raised, but not answered/decided by the Tribunal, can be made subject matter of an appeal under Section 260A of the Act. Therefore, a contention/issue, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case. 8. The facts and reasoning of the Tribunal recorded above shows that the Tribunal was of the opinion that the construction in question cannot be regarded as a temporary construction and therefore 100% depreciation was not permissible and depreciation should be as per the prescribed schedule. The nature of construction was permanent. The question, whether expenditure incurred by the assessee was capital expenditure or revenue expenditure, was not raised, argued or decided. This was not an issue or a question, which had arisen because of the findings recorded by the Tribunal. The appellant-assessee had filed an appeal before the Tribunal, having lost before the CIT(Appeals). The appellant-assessee did not raise the question/issue n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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