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TMI Blog2011 (12) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... venue has submitted that the tribunal has erred in entertaining and deciding the additional ground, questioning the validity of re-opening under Section 147/148 of the Act. It is submitted that the respondent had not raised and questioned the re-opening before the Assessing Officer and the Commissioner of Income Tax (Appeals) (CIT (A), for short). It is urged that the procedure prescribed in GKN Driveshafts (India) Ltd. vs. ITO, (2003) 259 ITR 19 (SC) was not followed by the respondent-assessee and, therefore, the respondent is precluded and should not have been permitted to raise the additional ground. 3. It is not possible to accept the last contention of the Revenue. GKN Driveshafts (supra) prescribes one of the methods or modes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There appears to be no good reason and none was placed before us to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer." 5. Similarly, in the case of National Thermal Power Corporation Ltd. vs. CIT; [1998] 229 ITR 383 (SC), it was held:- "Under section 254 of the Income-tax Act, the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the facts and material available with the Tribunal give rise to a pure question of law, then the Tribunal ought not have any difficulty in entertaining the additional ground. We are, at this stage, not expressing a view either way as to whether the ground is sustainable or not. We propose to remand the matter to the Tribunal to consider the additional ground that ought to have been considered by it, in the first instance. The only caveat being, that the assessee shall not be allowed to move any application to rely upon material other than that which is already on record before the Tribunal." 7. In the present case the relevant facts/materials were available before the tribunal, when the assessee raised the additional plea challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, at serial No.8 of the Notes, the assessee has specifically stated that communication expenses of Rs.43,48,141/- were computed and treated as expenditure on the basis of management's estimate pending finalization of agreement with the service provider. The tribunal has observed that no fresh material had come to the knowledge or information of the Assessing Officer after passing of the first assessment order. The tribunal has, therefore, rightly come to the conclusion that this is a case of change of opinion as this issue in question was examined in the original assessment proceedings. It is not alleged that the said finding are wrong. In the grounds of appeal/during the course of hearing, learned counsel for the appellant could not co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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