9911796707
TMI Blog1966 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 and 27 are not strictly applicable, we are of opinion that the Tribunal has got sufficient power under section 33(4) of the Act to entertain the argument of the department with regard to the application of paragraph 2 of the Taxation Laws Order and remand the case to the Income-tax Officer in the manner it has done. It is necessary to state that rules 12 and 27 are not exhaustive of the powers of the Appellate Tribunal. We are accordingly of the opinion that the Tribunal had jurisdiction to entertain the argument of the department in this case and to direct the Income-tax Officer to find whether any depreciation was actually allowed under the Industrial Tax Rules and whether such depreciation should be taken into consideration for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore became liable to be assessed as a resident from the assessment year 1950-51. The assessee was accordingly assessed as a resident in the years 1950-51, 1951-52 and 1952-53. One of the questions which arose for determination in the assessments for these years was the proper written down value of the buildings, machinery, etc., of the assessee for calculating the depreciation allowance under section 10(2)(vi) of the Act. The assessee relied upon section 10(5)(b) and contended that the original cost of the machinery, buildings, etc., should be taken for this purpose. That sub-clause provided that in the case of assets acquired before the previous year the written down value was the actual cost less all depreciation actually allowed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxation Laws Order "), the said provisions were applicable in the present case and certain amounts of depreciation which are allowed under the Industrial Tax Rules, which had the force of law in the Indore State, were required to be deducted in arriving at the written down value of the assets of the assessee. The Tribunal permitted this contention to be raised by the department. It was pointed out on behalf of the assessee that the contention could not be entertained unless it was found as a fact that the depreciation was actually allowed under the Industrial Tax Rules to the assessee, and unless it was also further held that the Industrial Tax Rules were rules which related to income-tax or super-tax, or any law relating to tax on profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount liable to Indian income-tax ? (2) Whether the provisions of paragraph 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, apply and were correctly applied to the facts of the case ? By its judgment dated June 22, 1962, the High Court agreed with the view taken by the Tribunal on the first question and answered it in favour of the assessee. As regards the second question, the High Court held as follows : " We do not find anything in the Tribunal's order which indicates that any contention was raised before the Tribunal that paragraph 2 had no application to the case. What was contended was that the questions whether any depreciation was allowed under the Industrial Tax Rules, or if it was so allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument. In the first place, no objection was raised before the Tribunal or before the High Court that the department should not have been allowed to raise the question for the first time with regard to the application of paragraph 2 of the Taxation Laws Order. We shall, however, assume in favour of the assessee that the question was implicit in the question actually framed and referred to the High Court. Even upon that assumption we are of opinion that the Tribunal had jurisdiction to permit the question to be raised for the first time in appeal. The powers of the Tribunal in dealing with appeals are expressed in section 33(4) of the Act in the widest possible terms. Section 33(3) of the Act states that " An appeal to the Appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground. " Rule 27 states : " The respondent, though he may not have appealed, may support the order of the Appellate Assistant Commissioner on any of the grounds decided against him. " Rule 28 is to the following effect : " Where the Tribunal is of opinion that the case should be remanded, it may remand it to the Appellate Assistant Commissioner or the Income-tax Officer, with such directions as the Tribunal may think fit." In the present case, the subject-matter of the appeal before the Tribunal was the question as to what should be the proper written down value of the buildings, machinery, etc., of the assessee for calculating the depreciation allowance under section 10(2)(vi) of the Act. It was certainly open to the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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