TMI Blog1999 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... s order in IT 19-CCE/84-85 dated 16-2-1985. In disposing of the appeal in para 4 of the order the CIT (Appeals) held as under : "The disallowance of the salary payment for the assessment year 79-80 and 80-81 had been subject-matter of appeal before the Income-tax Appellate Tribunal, Cochin Bench. The Hon'ble Tribunal by its order dated 22-10-1984 has set aside this issue and restored the matter to the ITO in order to make comprehensive enquiries about the experience of Smt. Rosamma Thomas in the matter of management and the services rendered by her to the company and to decide the admissibility of the payment afresh accordingly. Since the disallowance of the salary for the year under appeal before me is for the same reasons as for the assessment years 1979-80 and 80-81, it is only fair and proper that this matter is also sent back to the ITO for a fresh consideration and decision keeping in mind the observations and directions of the Tribunal on the matter. I would do so." The CIT(Appeals) further observed that as the assessment had been set aside for re-examining the admissibility of the salary paid to Smt. Rosamma Thomas as a deductible business expenditure, he was not decidi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only by the Taxation Laws (Amendment) Act, 1984 with effect from 1-4-1985. Prior to this amendment the only requirement was the filing of return under section 139. In the assessee's case return due on 31-7-1981 was filed on 13-2-1982. Meanwhile the assessee had filed Form No. 6 seeking time to file the return upto 31-10-1981. No doubt, no return was filed by that date. A notice under section 139(2) was issued on 14-1-1982 received on 25-1-1982 and the return was filed on 13-2-1982. The circular of the Board No. 397, dated 6-10-1984 was also relied upon in this connection. In support of the claim it was stated that the amendment to section 80 takes effect from 1-4-1985 and will, accordingly apply in relation to any a loss for the assessment year 1985-86 and subsequent years. The decision of the Kerala High Court in 1991 (1) KLT 795 in CIT v. Chandran was relied upon in this connection. It was held that the return filed or deemed to have been filed under section 139(4) of the Act before the assessment is made, should be considered and the assessee is entitled to carry forward the loss determined by the Income tax Officer." The CIT (Appeals) accepted the contentions raised on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assessing Officer as time barred and if the first appellate authority had not done so, it was open to the assessee to raise such a ground for the first time before the Tribunal. The learned representative has also referred to the Circular No. 96, dated 25th November, 1972 issued by the CBDT explaining the provisions of the Taxation Laws (Amendment) Act in regard to the time limit for completion of set aside assessments. He also relied on the decision of the Allahabad High Court in the case of Manik Chand Burman v. ITO [1998] 229 ITR 90 to contend that the order passed after the prescribed time-limit was bad in law, which required to be cancelled. 7. Per contra, Smt. T. Prasannakumari, the departmental representative submitted that the present appeal was not at all maintainable as the assessee was in no way aggrieved by the order of the CIT (Appeals). The learned departmental representative referred to the assessee's grounds of appeal before the CIT (Appeals) and pointed out that the appellate authority had accepted all the contentions raised on behalf of the assessee and decided the entire matter in favour of the assessee and allowed the appeal. The assessee's grievance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) had not set aside the entire assessment and that the setting aside was only for the limited purpose of considering the assessee's claim for deduction of the remuneration paid to the Manager in the light of the decision taken by the Tribunal for the assessment years 1979-80 and 1980-81. Though the CIT (Appeals) had observed that he was not deciding the other issues and that the Assessing Officer would be free to give a fresh look to those issues and grounds while making the fresh assessment, it was not in fact a fresh order of assessment that the Assessing Officer had passed on 8-3-1994. The contention of the learned departmental representative was that the time-limit provided under section 153(2A) applied only for making a fresh assessment order in pursuance of an order under section 250. In the present case it was only a simple order passed by the Assessing Officer on 8-3-1994 giving effect to the order of the CIT (Appeals), rather than a fresh assessment as envisaged in section 153(2A). The learned departmental representative thus contended that in any case, the order passed by the Assessing Officer was not time barred and it was in that sense not an invalid order. 8. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee has referred to various judicial decisions for the contention that the assessee is free to raise any time in an appeal a legal ground questioning the validity of an assessment. Shri John has drawn our attention to the decision of the jurisdictional High Court in CIT v. Kerala State Co-operative Marketing Federation Ltd. [1992] 193 ITR 624/65 Taxman 246 (Ker.) and submitted that an appellant before the Tribunal can, urge a new ground in an appeal with the leave of the Tribunal. The Tribunal has the jurisdiction to permit the appellant to raise any ground which has not been raised before the assessing authority or the CIT (Appeals). Once any such new or additional ground is raised, the Tribunal is duty bound to entertain that ground and render a decision thereon, the learned representative contended. In the case decided by the High Court, the Assessing Officer had disallowed the assessee's claim under section 80P(2)(a)(iii) of the Income-tax Act. On appeal, the CIT(Appeals) held that the assessee would be entitled to exemption in respect of the income derived from the marketing of agricultural produce belonging to the members. Since the break up of the figures regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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