TMI Blog2011 (12) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that no fresh material had come to the knowledge or information of the Assessing Officer after passing of the first assessment order. Therefore, this is a case of change of opinion as this issue in question was examined in the original assessment proceedings.- Decided against the Revenue - ITA 596/2011 - - - Dated:- 8-12-2011 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V.EASWAR, JJ. For Appellant: Mr.Kamal Sawhney, Advocate For Respondent: Ms.Shashi M.Kapila, Mr.R.R. Maurya and Mr.Sushil Kumar, Advocates O R D E R 1. The Revenue, in this appeal under Section 260A of the Income Tax Act, 1961 (Act, for short) impugns order dated 31.8.2010 passed by the Income Tax Appellate Tribunal (tribunal, for short) in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. 4. Whether and when an additional ground can be raised and entertained by the tribunal is not res integra. The Supreme Court in Jute Corporation of India Limited vs. CIT, (1991) 187 ITR 688 (SC) had observed:- .The declaration of law is clear that the power of the Appellate Assistant Commissioner is conterminous with that of the Income-tax Officer, and if that is so, there appears to be no reason as to why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income-tax Officer. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise, an appellate authority while hearing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of that item. We do not see any reason to restrict the power of the Tribunal under section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/crossobjections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. 6. Referring to these two judgments and earlier judgment of the Supreme Court in CIT vs. Kanpur Coal Syndicate, (1964) 53 ITR 225 (SC), a Division Bench of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings, the Assessing Officer had examined whether the communication expenses of Rs.43,48,151/- were based upon mere estimate of the management pending finalization of the agreement or an ascertained liability. It has been held by the tribunal that this aspect was duly deliberated upon during the course of the original assessment proceedings. The tribunal has referred to the questionnaire issued by the Assessing Officer and the reply of the assessee vide letter dated 28.02.2005. In the said letter, the respondent-assessee had enclosed details of communication expenses. The respondent-assessee had also filed copy of the some of the invoices to demonstrate and establish validity and justify the claim. In the return of income, the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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