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TMI Blog2018 (7) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... mented and the Assessee is not burdened with tax which under the law, it is not obliged to pay. Thus, the finding in the impugned order dated 2nd September, 2004 in the peculiar facts of this case, that an appeal from an order giving effect to the grounds which were not raised in the earlier Appeal filed from the order dated 16th March, 1988 of the Assessing Officer under Section 143(3) of the Act is not correct. Substantial question of law is answered in the Affirmative i.e. in favour of the appellant-assesee and against the respondent-Revenue. - INCOME TAX APPEAL NO. 292 OF 2002 - - - Dated:- 27-6-2018 - M.S. SANKLECHA, SANDEEP K. SHINDE, JJ. Mr. Jehangir Mistri, Senior Counsel a/w. Mr. Niraj Sheth, Mr. Rajesh Poojary i/by. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. This was for the reason that it had a current bank account in Frankfurt, West Germany where it had established an office to promote the export of cloth and yarn from India. This current Bank Account to carry out its day-to-day activities was held to be investments in contravention of Section 11(5) read with Section 13(1)(d) of the Act. On the aforesaid ground, the entire benefit under Section 11 of the Act was disallowed and income was computed under the Head Profit and Gains in Business . 5. Being aggrieved with the order dated 16 th March, 1988 the appellant filed an appeal to the Commissioner of Income-Tax, (CIT (Appeals). By an order dated 6th February, 1989 the CIT (Appeals) allowed the appellant's appeal, inter-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order was passed without giving a hearing to the petitioners and figures taken to determine the exempted income had to be reworked. Besides, holding the provisions of Section 11(1) of the Act were not correctly applied so as to determine whether or not, there is a surplus income in the subject Assessment Year which could be subjected to tax. 8. Being aggrieved with the order dated 9th July, 1992 of the CIT (Appeals), the Revenue and the appellant, both filed Appeals before the Tribunal. By the impugned order dated 8th October, 2001 the Tribunal allowed the Revenue's Appeal holding that the Appeal from Order giving effect to the order of the CIT (Appeals) raised issues which were not the subject matter of appeal filed in the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was while giving effect to the order dated 6th February, 1989 of the CIT (Appeals), the Assessing Officer has taken figures which were incorrect besides incorrectly applying the provisions of Section 11 of the Act to determine surplus income, if any, which could be subjected to tax. Thus, the order dated 27th March, 1989 of the Assessing Officer giving effect to the Appellate Order, had not appropriately dealt with the directions of the CIT (Appeals) as contained in the order dated 6th February, 1989. This is on account of incorrect application of Section 11 of the Act, inter-alia, taking incorrect figures to carry out/give effect to the direction of the Appellate Authority. Thus, the Appeal was in the facts of this case to the CIT (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant-Assessee before the CIT (Appeals) could never have been raised by the appellant while challenging the earlier order. There can be no wrong with a remedy. Moreover, the purpose and object of the orders passed under the Act is to ensure that the Act is properly implemented and the Assessee is not burdened with tax which under the law, it is not obliged to pay. Thus, the finding in the impugned order dated 2nd September, 2004 in the peculiar facts of this case, that an appeal from an order giving effect to the grounds which were not raised in the earlier Appeal filed from the order dated 16th March, 1988 of the Assessing Officer under Section 143(3) of the Act is not correct. 11. In the above view, substantial question of law is answer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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