TMI Blog2015 (1) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions when the matter was pending before the assessing officer or the first appellate authority. Appeal dismissed. -Decided against assessee. - ITA.No. 13 of 2013 - - - Dated:- 10-12-2014 - MR. ANTONY DOMINIC MR. ANIL K.NARENDRAN, JJ. FOR THE APPELLANT : ADV. SRI.A.KUMAR FOR THE RESPONDENT : SRI. P.K.R. MENON,SR. COUNSEL, GOI(TAXES), ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX JUDGEMENT Per: Antony Dominic: These appeals are filed by M/s. Kerala Minerals and Metals Ltd., under Section 260A of the Income Tax Act challenging the orders passed by the Income Tax Appellate Tribunal in ITA Nos.684/10, 685/10 and 307/09 whereby the appeals filed by the appellant concerning the assessment years 2005-06, 2006-07 and 2007-08 were dismissed. 2. We heard the learned counsel for the appellant and the learned standing counsel appearing for the department. 3. Since the issues raised in these appeals are connected, we heard these cases together and are disposing of the appeals by this common judgment. The common issue raised before us by the learned counsel for the appellant was regarding the legality of the order passed by the Tribunal in rejecting their prayer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Madhya Pradesh High Court in the case of CIT vs. Tollaram Hassomal reported 298 ITR 22. In the judicial hierarchy, the decision of the superior court is required to be preferred. On the issue whether a new claim raised for the first time before the tribunal can be admitted or not, the decision of the Hon'ble Supreme Court in the case of National Thermal Power Corporation Ltd. vs. CIT (supra) is available as on today. According to the said decision, a new claim involving legal issue can be admitted, provided all the facts relating thereto are available on record. In the instant case, though the additional grounds raised by the assessee may involve legal issue, yet the facts relating to there to are not available on record. Accordingly, by following the decision of Hon'ble Supreme Court in the case of National Thermal Power Corporation, supra, we decline to admit the additional grounds raised by the assessee. 5. According to the learned counsel for the appellant, the accounts being part of the record before the assessing officer and since expenditure claimed is reflected in the audited accounts, the Tribunal should not have accepted the contention of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/cross-objections 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. In the case of Jute Corporation of India Ltd. v. CIT (1991) 187 ITR 688, this court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. This court further obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant facts were not available on record. However, this statement made by the authorised representative was sought to be explained by the learned counsel for the appellant by contending that what he intended was that the facts were not available in the records before the Tribunal. However, since the statement made before the Tribunal is not a qualified one, as now sought to be made out, we are unable to accept the argument now urged. If that be so, the view taken by the Tribunal is fully supported by the principles laid down by the Supreme Court in Jute Corporation of India (supra) and NTPC case (supra). 10. In so far as the Division Bench judgment of this Court in the Kerala State Co-operative Marketing Federation Ltd., (supra) is concerned, learned counsel for the appellant relied on paragraphs 23 and 24 thereof, which reads thus; 23. Following the decisions of the Supreme Court cited above and agreeing with the view expressed by the Madras High Court in R.Brahadesswaran's case (supra), we hold that an appellant before the Tribunal could raise any new or additional point for the first time in appeal before the Tribunal even though it had not been rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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