TMI Blog1984 (10) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1979 for the assessment year 1975-76 : " 1. That the learned ITO and the Commissioner (Appeals) failed to recognise and give due legal relief owing to the fact that cash compensatory support received by the appellant of the amount of Rs, 85,70,740 was in the nature of capital receipt and that it was not taxable, notwithstanding the fact that the same has been treated as ' revenue receipt ' and included in the taxable profits of the appellant. 2. That the learned ITO and the Commissioner (Appeals) failed to recognise and give due legal relief owing to the fact that ' drawback of duty ' of the amount of Rs. 13,30,484, was in the nature of capital receipt and that it was not taxable notwithstanding the fact that the same has been treated as a ' revenue receipt ' and included in the taxable profit of the appellant. 3. That the learned ITO and the Commissioner (Appeals) failed to recognise and give due legal relief, owing to the fact that ' income from sale of import entitlement ' of the amount of Rs. 27,18,920 was in the nature of capital receipt and that it was not taxable notwithstanding the fact that the same has been treated as a 'revenue receipt' and included in the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le notwithstanding the fact that the same has been treated as a ' revenue receipt ' and included in the taxable profit of the appellant. 4. That without prejudice to any of the aforesaid ground of appeal, the appellant also claims that the learned assessing authority failed to apply the provisions of section 10(17B) of the Income-tax Act, which, as a matter of duty cast on it and determine that none of the amounts indicated above could be included by virtue of those provisions in the total income of the appellant. 5. That without prejudice to any one or more of the aforesaid grounds of appeal, the appellant submits that the assessing authority failed to determine the correct head of income under which the impugned receipts were to be brought to tax as income and, that in any event, they erred in law in bringing them to tax under the head ' Profits and gains of business or profession '. 6. That without prejudice to any one or more of the aforesaid grounds of appeal, the appellant submits that the assessing authority erred in taxing the grants made by the Government from the Consolidated Fund of India for specific purpose--for export promotion---under the various schemes to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by both the parties. Each case has to be determined on the facts of that case. On a consideration of all the facts and in the attendant circumstances of the case, we admit the additional grounds of appeal and direct that the additional grounds of appeal should be heard along with the other grounds raised in the appeals filed by the assessee. The assessee is not guilty of any latches." 4. The Tribunal also admitted additional grounds raised by the departmental representative, which was as follows : " The appellant, named above, seeks leave of the Hon'ble Tribunal in support of the following additional ground, which is not set forth in the memorandum of appeal : ' That the learned Commissioner (Appeals) erred in not disallowing weighted deduction under section 35B of the Act on commission of Rs. 12,10,893 on export sales even though this amount was allowed by the ITO, since such commission is not entitled to weighted deduction in view of the judgment of the Madras High Court reported in CIT v. Southern Sea Foods (P.) Ltd. [1983] 140 ITR 855 ' " 5. The Tribunal directed that the additional grounds raised by the assessee as well as the departmental representative were admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order, in our opinion, could not be considered as an order under section 254. None of these grounds have been decided by the Tribunal and those matters are still pending. As held by the Courts, the Tribunal hears the appeals and passes orders thereon. The question of consideration of the additional grounds would obviously arise as and when the Tribunal decides those matters, one way or the other. Questions of law about the merits as well as regarding admissibility, may be taken and may be considered at that stage. The learned counsel for the assessee was fair enough to submit before us that his client would not raise any question of limitation, if such a question is raised at the time of making a reference application when the final order of the Tribunal is passed. He also submitted that it would be open to the parties to contend whether the question raised is a question of law, which should be referred. 9. At this stage, we may take note of certain case laws which throw light on the issue before us. The Bombay High Court in the case of Trikamlal Maneklal, In re. [1958] 33 ITR 725, held as under : " There is nothing express or implicit in sections 33(4) and 66(1) of the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised at that stage. However, if the Tribunal set aside the order directing the authorities below to pass a fresh order after making the necessary enquiries, such order would be an order under section 33(4) and a reference would lie against such an order. 10. Somewhat similar matter came up before the Calcutta High Court in the case of CIT v. Calcutta Discount Co. Ltd. [1971] 82 ITR 941. In this case, the High Court held that the word ' thereon ' in section 33(4), is restricted to the subject-matter of the appeal before the Tribunal and the subject-matter of the appeal consists of the memorandum or grounds of appeal, the additional grounds, if any, allowed by the Tribunal and the grounds, if any, urged by or on behalf of the respondent to support the order under appeal. In the case, the revenue wanted to raise a few additional grounds of appeal and made a formal application to the Tribunal for that purpose. The Tribunal rejected the application and the additional grounds mentioned therein remained outside the purview of the subject-matter of the appeal. The High Court held that since the additional grounds did not form part of the subject-matter of the appeal, the Tribunal's order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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