TMI Blog2004 (12) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be made under section 143(3) by the Assessing Officer vide his order dated 19-3-1996 assessing the total income at Rs. 1,06,67,39,040. The main addition made by the Assessing Officer in the said assessment was that of Rs. 36.90 lakhs on account of income accrued to the assessee on account of interest but not received during the year under consideration. The said addition was challenged by the assessee in an appeal preferred before the learned CIT(A) and vide his impugned order, the learned CIT(A) deleted the said addition made by the Assessing Officer allowing relief to the assessee. During the course of appellate proceedings before the learned CIT(A), the assessee company sought to raise the following two additional grounds:- "(i) On the facts and circumstances of the case depreciation on the buildings of the appellant used for operational purposes be allowed treating the said building as plant. (ii) On the facts and circumstances of the case the appellant be granted exemption under section 10(29) of the Income-tax Act, 1961 in respect of income from letting out godowns and warehouses." 3. Reliance was placed on behalf of the assessee company on the following case laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge in the law in-between. The appellant was aware of its legal right at the relevant time but failed to make the claim before the Assessing Officer. (4) The depreciation claimed by the assessee on building at 10% in its return of income was allowed by the Assessing Officer in his order passed under section 143(3). It, therefore, cannot be said to have any grievance on this count. Similarly, the assessee cannot be said to have been aggrieved on account of its claim under section 10(29) as no such claim was made before the Assessing Officer. Hence no appeal lies and emanates from the order of the Assessing Officer. (5) The assessee claimed exemption under section 10(29) for the first time in assessment year 1991-92 before the Assessing Officer by filing the revised return on 31-3-1993. The Assessing Officer, however, disallowed the same vide his order dated 25-8-1993. The assessee took his claim for the enhanced depreciation on operational buildings before the CIT(A) for assessment year 1991-92 as additional ground and it was allowed. Similarly, the assessee claimed deduction under section 10(29) as well as enhanced claim for depreciation on operational building in the form of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10(29) were not only admitted by the learned CIT(A) but even the issues raised therein were decided in favour of the assessee by the first appellate authority on merits. Referring to page 9 of his paper book, he pointed out that the cargo revenue shown separately to the credit of profit loss account represented the income of the assessee from warehousing on which exemption under section 10(29) was claimed and this aspect could have been got verified by the learned CIT(A) from the Assessing Officer for the purpose of deciding the issue relating to exemption under section 10(29) as raised in the additional ground. Referring to the order of the Tribunal dated 26-6-2003 passed in assessee's own case for assessment years 1991-92 and 1992-93 placed at page 72 of his paper book, he pointed out that both the appeals filed by the Revenue against the aforesaid orders of learned CIT (A) for assessment years 1991-92 and 1992-93 have been dismissed by the Tribunal in limine for want of COD approval and thus the said orders of the CIT(A) have become final. 6. The learned DR, on the other hand, submitted that the provisions of section 250(5) relating to the admission of additional ground b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional levy, the assessee was advised by the Ministry of Civil Aviation to wait for CIT(A)'s order for assessment years 1991-92 and 1992-93 and then to make similar claim for the year under consideration i.e., 1993-94. He submitted that the appellate orders for assessment years 1991-92 and 1992-93 were passed by the learned CIT(A) on 22-5-1996 and immediately thereafter, the additional grounds were sought to be raised before the learned CIT(A) by the assessee for the year under consideration i.e., 1993-94 by letter dated 10-6-1996. 8. We have considered the rival submissions and also perused relevant material on record. It is observed that the additional grounds sought to be raised by the assessee were not admitted by the learned CIT(A) giving various reasons in his impugned order. First of all, although he agreed that the issues raised in the additional grounds were purely legal, the admission thereof was refused by him on the ground that all the facts required to decide the said issues are not available on record. In this regard, the learned counsel for the assessee has pointed out with the help of relevant financial statements filed alongwith the return by the assessee that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned CIT(A) in the appellate proceedings for the year under consideration by letter dated 10-6-1996 i.e., immediately after the passing of appellate orders for assessment years 1991-92 and 1992-93 by the learned CIT(A) on 22-5-1996 allowing the similar claims made by the assessee, further supports the assessee's case that such advice in fact was given by the Ministry of Civil Aviation and the assessee indeed had acted upon such advice. In any case, the very fact that the similar claim made by the assessee was disallowed by the Assessing Officer in assessment year 1991-92 resulting into additional liability of Rs. 3.63 crores on account of additional tax coupled with the fact that similar claim made before the learned CIT(A) for assessment years 1991-92 and 1992-93 in the form of additional grounds were pending before him justifies the stand taken by the assessee to first wait for the said decisions and depending on the outcome of the same, to further proceed in the matter by raising the additional grounds in the appeal filed before the learned CIT(A) for the year under consideration. In our opinion, such a stand taken by the assessee could not be considered as wilful or unrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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