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TMI Blog2000 (11) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... its and gains of business for working out the deduction under section 80HHC. Moreover the Hon'ble ITAT has also given its finding with reference to sale of entitlement even when this ground of appeal was not there before them as the same was struck down in the grounds of appeal itself. It is respectfully submitted that as per provisions of section 254(1), the Appellate Tribunal can deal with only that part of the order of the first Appellate Authority, which has been made the subject-matter of the appeal before it. It is not open to the Hon'ble ITAT to adjudicate or give finding on an issue which is not in dispute and which does not form part of the appeal before it. It is thus submitted that in the given case when controversy is precisely limited to a narrow compass of deciding the issue whether the service charges shall be included in turnover for computing claim under section 80HHC, the Hon'ble ITAT is not competent to go wider it as to traverse beyond the subject-matter which was in dispute before it." Shri J.P. Shah, the learned counsel for the assessee argued that while adjudicating the issue regarding computation of deduction under section 80HHC the Tribunal has fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave, the ld. Sr. DR strongly urged that the issue regarding sale of import entitlement to be included in the total turnover has been argued by both the sides during the course of hearing of the appeal and written arguments on the issue have also been submitted during the course of hearing which have been considered by the Tribunal while adjudicating the issue. The ld. DR further added that since the issue arising from ground No. 1 (iii) has been argued by both the sides and has been adjudicated, it is immaterial whether the said ground in the Memorandum of appeal, has been struck off or not. The ld. DR referred to Rule 11 of Income-tax Appellate Tribunal Rules which provide that even if any ground is not set forth in the memorandum of appeal, the same can be taken by the appellant with the permission of the Tribunal. It is further submitted that after the ground has been allowed to be taken up by the Tribunal and has been argued by both the sides adjudication of the ground in the impugned order can by any stretch of logic or reasoning not be construed as a mistake. 5. In rejoinder, the ld. counsel for the assessee sought to refute the contentions of the ld. DR and argued that onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject-matter of appeal. 7. An important facet of adversial adjudication which essentially circumscribes the jurisdiction of the appellate authority need to be stated here. The normal rule governing the appellate jurisdiction is that the existing interests and rights of the appellant party before the appellate forum should not be adversely affected by its decision. It is an elementary principle of the Civil Procedure Code that the respondent who has neither preferred his own appeal nor has filed Cross Objection in the appeal preferred by the appellant must be deemed to be satisfied with the decision of the lower authority and he will not be entitled to seek relief against the rival party in an appeal preferred by the latter. If a party appeals he is the party which comes up before the Tribunal in redressal of the grievance alleged by him. If the other side has any grievance he has a right to file a cross appeal or a Cross Objection but if no such thing is done the other party in law is deemed to be satisfied with the decision. The respondent is not entitled to raise the ground so as to work adversely to the appellant and in his favour. 8. Now coming to the judicial authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision of the Apex Court in the case of Bhavana Chemicals Ltd. cited by the ld. Sr. D.R. before us. The facts in this case are that the Revenue raised a contention before the Tribunal for the first time that the Assessing Officer had allowed certain expenses wrongly while computing the total income. The Tribunal accepted the preliminary objection of the Revenue and remanded the matter to the Assessing Officer for assessment afresh. The Supreme Court upheld the order of the Tribunal and rejected the contention of the assessee that the order of the assessment to be made by the Assessing Officer might result in enhancement of the tax payable by the assessee and that such a course was not open to the Tribunal. The Supreme Court observed that if the assessee feels aggrieved with the assessment, he can adopt the remedies provided by law. 13. Applying the aforesaid principles to the instant case, we find that the impugned order has been passed by the Tribunal for disposing of an appeal by, the Department. The limitations placed on the powers and jurisdiction of the Tribunal have been fully adhered to inasmuch as the Tribunal has not traversed outside the subject-matter of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order of the Tribunal inasmuch as while service charges have been held as part of the business in para 6 of the order, the same have been directed to be excluded while applying the formula for computation of deduction under section 80HHC. The inconsistency pointed in the Mics. application is clearly based on misreading of the impugned order of the Tribunal. In para 6 of the impugned order it has been clearly pointed out that for computing the export profits under section 80HHC total turnover of business i.e. total sale proceeds of the goods and merchandise exported and sold in India and profit of business relating to the goods and the merchandise would have to be considered. Service charges on account of finance and leasing were excluded from the total turnover as well as profits and gains of business in a consistent and harmonious fashion and we see no contradiction or inconsistency in our conclusion. This contention of the assessee is, therefore, without substance and is rejected. 16. Regarding ground No. 1 (iii) which according to the ld. counsel had been struck off in the Memorandum of appeal, we concur with the contention of the ld. DR that the ground has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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