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TMI Blog2011 (11) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... be made the subject-matter of the appellate proceedings. Therefore, no application to raise an additional ground was required to be filed before the Tribunal. Therefore, order of dismissal is set aside and it is directed that the Tribunal will decide the aforesaid ground of appeal – Decided in favor of assessee. - 459 of 2011 - - - Dated:- 4-11-2011 - SANJIV KHANNA, EASWAR R. V., JJ. JUDGMENT 1. After hearing counsel for the parties, the following substantial question of law is framed : "Whether the Tribunal was right in dismissing the application under section 254(2) filed by the appellant-Power Finance Corporation Ltd., vide order dated June 18, 2010." 2. For the assessment year 2003-04, the Assessing Officer had pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal. The Tribunal disposed of the appeal and another appeal for the assessment year 2002-03 by a common order dated August 31, 2009. In the appeal for the assessment year 2002-03, it was held as under : "29. In line with this Tribunal's order in the assessee's own case for the assessment year 1996-97, in the present year also we restore this matter back to the file of the Assessing Officer for considering the direct expenses incurred by the assessee for such income on account of interest on deposits and after examining such expenses the expenses which are incurred for earning this income should be deducted from income on account of interest on deposits and only such net income should be excluded from the business income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee had raised a ground relating to deduction under section 36(1)(viii) before the Commissioner of Income-tax (Appeals). Ground No. 4 filed before the Commissioner of Income-tax (Appeals) has been quoted above. The figures mentioned in the said ground tally with the figures mentioned in the assessment order for computation of special reserve under section 36(1)(viii) of the Act. It is clear that this grievance was raised but the Commissioner of Income-tax (Appeals) had failed to consider the said ground. Therefore, the appellant-assessee was compelled to file an appeal before the Tribunal. 10. The statement/admission of the authorised representative of the appellant that this ground was not raised before the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing that it may arise on the finding given by it." 11. While the above case law pertains to a reference application against an impugned order delivered by the Tribunal, the same analogy and principle may be applied where an appeal is preferred before the Tribunal. 12. The question of law is accordingly answered in favour of the appellant-assessee and against the Revenue and the impugned order dated June 18, 2010, is set aside. It is directed that the Tribunal will decide the following ground of appeal "Not considering the allocation of direct and common expenses to income from equipment financing and debt refinancing and transitional loan". 13. Parties will appear before the Assistant Registrar of the Tribunal on November 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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