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TMI Blog2016 (9) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before the ITAT by the Appellant ? (ii). Whether in facts and circumstances of the case order of the ITAT is contrary to the ratio of the Apex Court in the case of National Thermal Vs. CIT 229 ITR 383 ?" The answer to either of the afore-quoted questions would answer the other. For the Assessment Year in question, through order dated 29.12.2009, the assessee was assessed to tax, which order was challenged by the assessee through an appeal filed before the Commissioner of Income Tax, Ludhiana (for short - the Commissioner), which was partly allowed. This led to filing of cross-appeals before the Tribunal-one by the Revenue and the other by the assessee. In the Memorandum of Appeal filed before the Tribunal, the assessee raised an additional ground with regard to calculation of Minimum Alternate Tax to be carried forward to the subsequent year. According to the assessee, in the Assessment Order, the same had not been correctly calculated. As this ground was to challenge the above computation made in the assessment proceedings and had not been raised before the Commissioner, the Tribunal refused to adjudicate upon the same as according to the Tribunal prior leave of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this rule: Provided that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground. xx xx xx xx 29. Production of additional evidence before the Tribunal.- The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them, or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. Rule 11 of the Rules provides that the appellant, with the leave of the Tribunal can urge before it any ground not taken in the memorandum of appeal and that the Tribunal while deciding the appeal is not confined only to the grounds taken in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. In the case of Jute Corporation of India Ltd. v. C.I.T. . 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 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. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfied that the ground raised could not have been raised earlier for good reasons, are obviously in respect of cases where some factual aspect is also involved and not where only a pure question of law is involved. This is clear from the observation in paragraph-7 that where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings, it is necessary to consider that a question in order to correctly assess the tax liability of an assessee. The reason is obvious. Where disputed questions of facts are involved, it would unnecessarily delay the assessment proceedings and may in certain circumstances place an unfair burden upon the Revenue such as when the proceedings have been pending for a long period of time and it is difficult to ascertain the facts. Such cases would deprive the Revenue an opportunity of meeting the case on facts effectively. In the case before us Mrs. Suri made a statement that the assessee would not rely upon any additional evidence and would proceed only on the basis of the facts admitted by the department. In other words she stated that the assessee intended to and would raise a ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcle-III-2, Ahmedabad and others [1976] 103 ITR 763:- "............where, in an appeal to the Appellate Assistant Commissioner by the assessee against an order of assessment, the assessee has not questioned the decision of the Income-tax Officer on a point decided, and the Appellate Assistant Commissioner has not in his order considered that point, the assessee is not entitled to question the decision of the officer on that point in an appeal to the Appellate Tribunal against the order of the Appellate Assistant Commissioner and the Tribunal is not entitled to allow the assessee to agitate the question under the guise of granting leave under rule 11 of the Income-tax (Appellate Tribunal) Rules, 1963." These observations are contrary to the judgment of the Supreme Court in National Thermal Power Co. Ltd. case (supra). Infact the Full Bench of the Bombay High Court in Godavari Sugar Mills Ltd. case (supra) dealing with Rule 11 observed as under:- "19. In this connection a reference may also be made to the Income Tax (Appellate Tribunal) Rules, 1963 which have been framed under section 255(5) of the Income Tax Act, 1961. Under Rule 11 of the Appellate Tribunal Rules the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised its discretion especially in view of the fact that the assessee intends raising only a legal argument without reference to any disputed questions of fact. In Sahara India's case (supra), which was also relied upon by the Tribunal, the Tribunal had permitted an additional ground to be raised and the issue decided by the Court was with regard to how the Tribunal should have proceeded thereafter. The Tribunal ought to have considered the judgment as a whole and ought not to have relied upon the head note alone. The judgment infact supports the assessee. As noted in the opening paragraph the Tribunal had admitted an additional ground and allowed the relief to the assessee on that ground. The Division Bench noted that the Tribunal while admitting the additional ground had not discussed the full facts of the case. In paragraph- 19 the Court observed that when the facts of the case are neither clear nor discussed by the Tribunal, the Tribunal having permitted the assessee to raise additional grounds treating it to be a legal ground in appeal for the first time, should have set aside the order of the Commissioner of Income Tax (Appeals) and remanded the case to him for decidi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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