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TMI Blog2014 (12) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... s which the original authority may have in deciding the question 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 is no good reason 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 – there is no reason as to why the Tribunal could have disallowed the assessee from raising this ground – the approach of the Tribunal is contrary to the express language of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that the Tribunal's approach is in direct contradiction with the binding judgment of the Hon'ble Supreme Court in the case of National Thermal Power Limited Company V/s. Commissioner of Income Tax. The said decision is reported in (1998) 229 ITR 383. 5. On the other hand, Mr. Chhotaray, would submit that the Tribunal was justified in the conclusion that it reached because really speaking there was no controversy or issue raised on this question or ground. Inviting our attention to the findings of the Assessing Officer, Mr. Chhotaray submits that the Assessee cannot make any grievance because it has accepted before the Assessing Officer that the payment would attract this provision and they were obliged to deduct the tax at sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. We do not see any reason to restrict the power of the Tribunal under section 254 only to decide the ground which arise from the order of the Commissioner of Income Tax (Appeals). Both the Assessee as well as the Department have a right to file an Appeal/Cross objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. In the case Jute Corporation of India Ltd. V/s. CIT (1991) 187 ITR 688, this Court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an Assessee." 7. In the light of authoritative pronouncement and which was binding on the Tribunal, in terms of Article 141 of the Constitution of India, we do not see how the Tribunal could have disallowed the Assessee from raising this ground. It may be that the Tribunal is inclined not to grant the request of the Assessee because eventually the ground may have to be answered against the Assessee on merits. However, that is a totally irrelevant c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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