9911796707
Advanced Search 
TMI Blog1972 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ided family, and this was in conformity with the stand taken by the accountable persons at the time of filing of the account of the estate. The said Parasuraman thereafter preferred an appeal to the Central Board of Direct Taxes under section 63 of the Estate Duty Act, 1953, and the contentions raised in the original grounds of appeal related to the valuation of certain properties included in the assessment. However, later, he had filed an additional grounds of appeal urging two new grounds: (1) that the Assistant Controller had not given notices to all the accountable persons before completing the assessment and as a result, the actual status of the deceased as a member of an undivided Hindu family was lost sight of, and (2) that the properties, the valuation of which was disputed in appeal before the Board were received by the deceased as ancestral property at the time of the partition of the Hindu undivided family between himself and his brothers and as such the estate duty assessment should have been made on that basis. The Board disposed of the original contention relating to the valuation by allowing some reduction. It, however, found that the question of status of the deceas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is in the light of this provision in section 63(3) the question as to whether the Board has properly exercised its discretion in rejecting the additional grounds of appeal has to be considered. In Ramgopal Ganpatrai & Sons v. Commissioner of Excess Profits Tax, Chagla C.J., speaking for the Bench, while considering the scope of an analogous provision in section 17 of the Excess Profits Tax Act, expressed thus : " It is difficult to understand how it is possible to contend that an Appellate Tribunal has not the jurisdiction to deal with an order which is in appeal before it on any ground, even though such a ground was not taken in the trial court. If the appellant challenges the order of the trial court and wishes to contend that the order is wrong by certain provisions of the law, even though he had riot taken that contention in the court below, it is impossible to urge that the appellate court has no jurisdiction to reverse that order on the ground urged by the appellant. We are not suggesting that the appellate court has no discretion to refuse the appellant to urge a ground not taken in the court below, but what we are concerned with in this reference is not the discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised, it cannot be said to have acted arbitrarily. In the course of the judgment the learned judges say: " That the ground was never urged before the Income-tax Officer, and in any case before the Appellate Assistant Commissioner, is also a fact which has some logical connection with the question whether the leave to urge it should be granted. The leave is required because the ground was not stated in the memorandum of appeal and would be required even if it had been urged before the Income-tax Officer and the Appellate Assistant Commissioner. It is relevant to consider the reason offered for the assessee's failure to urge the ground earlier; its ignorance of the law is no excuse. There may be no substance in the department's contention that the assessee did not act bona fide in raising the ground at the late stage and there might be nothing in the conduct of the assessee which would justify refusal of the leave, but there are other grounds which cannot be brushed aside as irrelevant. So long as there is some logical connection between those grounds and the refusal to grant leave, it cannot be said that the Tribunal acted arbitrarily. In Hukumchand Mills Ltd. v. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority cannot refuse to entertain such a new round arbitrarily but has to consider the reasons given by the assessee for not urging the new grounds before the initial authorities judicially. If the Tribunal comes to the conclusion that the reason given 'for not urging the points at an earlier stage is not german or unreasonable, the Tribunal will be well within its discretion in refusing to entertain the new grounds of appeal. In Connecticut Fire Insurance Company v. Kavanagh , the Privy Council stated: " When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below. But, their Lordships have no hesitation in holding that the course ought not, in any case, to be followed, unless the court is satisfied that the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se new questions of fact. The Supreme Court in a later decision in Manji Dana v. Commissioner of Income-tax had expressed that whether the discretion of the Appellate. Tribunal has been properly exercised in a given case in refusing to allow a new ground of appeal, would normally be a question of fact. In that case the assessee submitted a return in the status of an individual pursuant to a notice under section 34(1)(a) of the Income-tax Act. The Income-tax Officer accepted the status of the assesee as an individual and proceeded to make the assessment. Thereafter, at the appellate stage, it was contended that the status of the assessee has not been properly determined. The Supreme Court justified the order of the Tribunal refusing to entertain the additional ground, for the reason that the additional ground if allowed to be raised involves investigation of new facts on evidence, and that it would also be contrary to the admissions made by the assessee in his return submitted in his individual capacity. In this case the accountable person submitted the accounts of the estate on the basis that all the properties belonged to the deceased individually and he also relied on the will l ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
