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TMI Blog2015 (12) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... for industrial use and information technology business. The assessee electronically filed its return of income for assessment year 2007-08 on 25th October, 2007 declaring total income of Rs. 522,35,54,903. Subsequently, a revised return came to be filed by revising the total income to Rs. 443,99,08,567. The case was selected for scrutiny and assessment came to be framed under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') vide order dated 31st March, 2009 and the total taxable income was determined at Rs. 447,06,15,430/-. The assessee carried the matter in appeal before the Commissioner of Income-tax (Appeals), who, by an order dated 25th October, 2010 granted partial relief to the assessee. Both, the assessee as well as the revenue, carried the matters in appeal before the Tribunal. Before the Tribunal, the assessee submitted that the merger of erstwhile Narmada Chematur Petrochemicals Co. Limited effective from 1st April, 2005, under the scheme approved by the Gujarat High Court with the assessee resulted in acquisition of goodwill. The claim of depreciation on goodwill was not made due to lack of clarity as regards the legal position. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any goodwill and its cost of acquisition within the meaning of section 43(1) of the Act are not on record, which is a prerequisite for claiming depreciation. It was submitted that the additional ground is a factual ground warranting in depth investigation of facts pertaining to goodwill. 4.1 Referring to the impugned order, it was submitted that the Tribunal, without recording any reasons, has in breach of rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963 allowed the additional ground. Reliance was placed on the decision of the Delhi High Court in the case of Maruti Udyog Limited v. Income Tax Appellate Tribunal and Ors., (2000) 244 ITR 303 (Delhi), wherein the court has observed the requirement to record reasons is inherent to the proviso to rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963. The court held that it has been clearly indicated that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground. The appellant was not permitted to urge a point not set forth in the memorandum of appeal without the leave of the Tribunal. Even otherwise, the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. Mr. Shah submitted that therefore, the Tribunal did not commit any error in permitting the respondent assessee to raise an additional ground for the first time before it. As regards the contention that the Tribunal has not recorded any reasons while permitting the additional ground, it was submitted that the Tribunal has recorded a finding that the additional ground raised by the assessee is a purely legal ground and had accordingly admitted the same for adjudication. Under the circumstances, it cannot be said that the impugned order passed by the Tribunal is a non reasoned one. 5.2 In conclusion, it was submitted that the impugned order passed by the Tribunal being in consonance with the law laid down in the above decisions, there is no warrant for intervention by this court. 6. The short controversy involved in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs. Commissioner of Income-tax (supra) on the ground that the same pertained to the power of the Tribunal under section 254 of the Act to entertain a point of law for the first time and commented that such decision does not relate to the power of the assessing officer to entertain a claim for deduction otherwise than by filing a revised return. In the process the Supreme Court recognized that a new claim could not be entertained by the assessing officer without the assessee revising the return. While doing so it was clarified that:- "4...However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs." 40.It thus becomes clear that the decision of the Supreme Court in the case of Goetze (India) Ltd. vs. Commissioner of Income-tax (supra) is confined to the powers of the assessing officer and accepting a claim without revised return. This is what Supreme Court observed in the said judgment while distinguishing the judgment in the case of National Thermal Power Co. Ltd. vs. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Commissioner of Income-tax vs. Pruthvi Brokers and Shareholders P.Ltd.(supra), which has traveled a little beyond this preposition and come to the conclusion that even if facts necessary to examine such a claim are not placed before the assessing officer and, therefore, not on record, there would be no impediment in the Commissioner (Appeals) entertaining such a claim. Such an issue does not arise in these appeals. We would, therefore, reserve our opinion on this limited aspect of the matter if and when in future the question presents before us in such form. For the present, we answer Questions (3) and (4) against the Revenue and in favour of the assessees in manner described above." 8. Thus, this court, in the above decision has clearly held that any ground, legal contention or even a claim would be permissible to be raised for the first time before the appellate authority or the tribunal when the facts necessary to examine such ground, contention or claim are already on record. In such a case, the situation would be akin to allowing a pure question of law to be raised at any stage of the proceedings. Adverting to the facts of the present case, the Tribunal has, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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