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TMI Blog2012 (11) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... olding that the incentive amount of Rs.14,71,545/- for the assessment year 1988-89 was liable to tax as a revenue receipt and was not on capital account outside the purview of taxation? (ii) Whether on a true and proper interpretation of the scheme of Government of Gujarat, the Tribunal was justified in law in holding that the subsidy amounting to Rs.17,28,843/- and Rs.12,65,490/- for the assessment years 1995-96 and 1996-97 respectively was liable to tax as a revenue receipt and was not on capital account outside the purview of taxation? (iii) Whether on a true and proper interpretation of the provisions of sub-sections (1) and (6) of Section 43, the Tribunal was justified in law in upholding the action of the Assessing Officer for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... off in the appellant's accounts for the assessment year 1995-96 and its purported findings that the expenditure was capital in nature not incidental to the running of the appellant's business and disallowing the claim are arbitrary, unreasonable and perverse? (vii) Whether the Tribunal was justified in law in upholding the disallowance of a sum of Rs.13,42,739/- out of the interest expenditure incurred by the appellant for the purposes of its business during the previous year relevant to the assessment year 1995-96 and its purported findings in that behalf and upholding taxation of the said amount as deemed interest on the advance made to M/s. Polypropylene India Ltd. in the earlier years out of the appellant's own funds are arbitrary, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter the Registry was directed to fix the cases for fresh hearing in due course. Thereafter the said appeals came up for fresh hearing. The said appeals were restored and immediately thereafter the assessee/appellant again filed Miscellaneous Applications bearing No.362/Kol/04 to 374/Kol/04 against order dated 11th June, 2004. In subsequent Miscellaneous Applications it was the contention of the appellant that earlier Miscellaneous Applications were not intended to make for recalling of the entire order but for rectification and correction of mistakes which are crept in the order of the Tribunal passed in the above appeal referred to above. Accordingly, order dated 11th June, 2004 was sought to be modified and recalled and the order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsels to advance argument on merit in anticipation if the same is required to be decided after deciding the question of maintainability. We thus first proceed to decide the question of maintainability. From the record it appears that the assessee made applications for rectification of the order dated 28th November, 2003 on certain point and not otherwise. Therefore it is clear that at that point of time the assessee has accepted the decision rendered by the impugned judgment and order on other issues in respect of which no rectification was called for. When the said Miscellaneous Applications were disposed of without rectifying mistake as prayed for, recalling the earlier order dated 28th November, 2003, subsequent application was made fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. The matter was pending before the learned Tribunal till 2004. By the act and conduct we hold that the impugned judgment and order dated 28th November, 2003 has been merged with the final order dated 20th of December 2004 as rightly argued by Mr. Som. Indeed we think that petitioner is estopped from challenging the same when it was not challenged on any other grounds within the period of limitation. We think that even if the appeal is admitted by the order of the Court the question of entertainability will arise. Thus applying the doctrine of merger and also estoppel we hold that this appeal is not maintainable. Under the circumstances we do not think other arguments advanced on the merit of the case should be considered by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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