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TMI Blog1988 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... was right in law in refusing to admit and adjudicate on the additional ground of appeal in respect of the claim of the assessee for grant of deduction under section 80J relating to the export wing ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in refusing to admit and adjudicate on the additional ground of appeal in respect of the claim of the assessee for grant of deduction under section 80J relating to the vanaspati unit ?" Facts giving rise to the present reference, briefly stated, are as under: The assessee-company, at the time of its assessment for the assessment year 1972-73 and accounting year ending with December 31, 1971, claimed deduction under section 80J of the Income-tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 80J with regard to the claim in respect of the export wing and the working out of the capital employed was assailed and when the assessee said that deduction under section 80J of the Act was not correctly worked out, it necessarily implied that mode of computation or working out of the capital employed was attacked by the assessee. The Appellate Assistant Commissioner, vide his order dated January 22, 1976, annexure "C" affirmed the findings of the Income-tax Officer on the relevant point. While dealing with ground of appeal No. 5 referred to above with regard to the vanaspati unit, he remarked that no details had been furnished before him as to how it has not been correctly worked out. With regard to the export wing, he relied upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the judgment delivered by the Supreme Court which had become available after the earlier decision of the Tribunal and that the Income-tax Officer had already given an alternative finding on the point in the assessment order which is backed by a computation, annexure "I", to his assessment order. But, the Tribunal refused to admit and adjudicate on the additional ground with regard thereto which covers computation or working out of the deduction under the relevant provision of law. That necessitated the application of the assessee-company giving rise to the present reference. We are of the considered opinion that the additional ground with regard to the computation under section 80J could not have possibly been considered as a fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already observed above, once a person alleges that deduction was not correctly made, it necessarily means that he objects to its working out or calculation. With regard to the vanaspati unit, the Appellate Assistant Commissioner remarked that the attack was not properly spelt out and with regard to the export wing, he did not feel the necessity of going into that question because he felt that it did not qualify for such deduction. The Tribunal, however, set aside his said finding and came to the conclusion that it qualified for deduction but strangely enough did not go into the question of computation. Therefore, in the additional ground of appeal, the assessee tried to spell out the course of attack making it clear that the total capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved in the said ruling of the apex court that Parliament throughout, save in respect of the period from April 1, 1968, to March 31, 1972, approved of exclusion of borrowed monies in computing the "capital employed", which obviously means that during the period from April 1, 1968, to March 31, 1972, borrowed monies were not excluded in computing the capital employed. It has been made clear in Lohia Machines' case [1985] 152 ITR 308 (SC) that period of long term borrowings from approved sources were then brought into the computation of the "capital employed". As the accounting year of the assessee in this case falls within that period, it was incumbent on the Tribunal to admit and adjudicate on the additional ground of appeal in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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