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TMI Blog1953 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed the Hindu undivided family as the managing agents. On the 23rd June, 1943, the assessee company was incorporated and the managing agency of the Hindu undivided family was assigned to it by an agreement as from the 1st July, 1943. The assessments we are concerned with are under the Excess Profits Tax Act and the three periods in question are the chargeable accounting periods from the 1st July, 1943, to the 31st March, 1944, the 1st April, 1944, to the 31st March, 1945, and the 1st April, 1945, to the 31st March, 1946. After the Excess Profits Tax Officer had made his assessment, the assessee company appealed to the Appellate Assistant Commissioner and before the Appellate Assistant Commissioner it wanted to raise a certain contention of law which had not been stated in the grounds of appeal to the Appellate Assistant Commissioner, and the question of law was that under the managing agency agreement the managing agency commission was due on the 1st of April immediately next ensuing the accounting year of the company and is payable after the accounts were passed at the general meeting of the company, and therefore it was contended that as the assessee company was incorporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh he had not taken that contention in the Court below, it is impossible to urge that the appellate Court has no jurisdiction to reverse that order on the ground urged by the appellant. We are not suggesting that the Appellate Court has no discretion to refuse the appellant to urge a ground not taken in the Court below, but what we are concerned with in this reference is not the discretion of the Appellate Court but the competency and the jurisdiction of the Appellate Court to allow a point of law to be taken before it which was not taken in the Court below. It must be borne in mind that when a statute confers a right of appeal and permits an order of a trial Court to be challenged, the appellate Court has full jurisdiction to reverse or modify that order on any ground which is open to it in law. The appellate Court may even reverse or modify the order on a point of law taken by itself suo motu without being asked to do so by the appellant. The Tribunal has taken the view that because the Excess Profits Tax Officer could have dealt with the point if it was taken and possibly given relief to the appellant, and there would have been no occasion for an appeal at all, and therefore it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not taken that ground before the Income-tax Officer, he would be debarred from doing so. Therefore in our opinion Section 31(2A) does not in any way help the discussion on the rights of an Appellate Court to hear an appeal on grounds not taken in the Court below. In our opinion the Tribunal was in error in holding that the assessee company was not permitted in law to take a new ground or that either the Appellate Assistant Commissioner or the Tribunal was debarred from deciding the point which the assessee company wanted to raise. The questions raised by the Commissioner are rather detailed and go into various computations, and we must point out to the Tribunal that the form of questions raised is not the proper form. Some of the questions almost require this Court to assist the taxing officers or to point out to the taxing officers how they should assess the profits of the assessee company. That is not the function of this Court. The function of this Court is an advisory function to advise on questions of law, and the questions of law should be so framed as to be capable of a simple answer, and once the answer is given by this Court it is for the taxing department to tax and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 3rd September, 1937. When one talks of a succession, there must be a subsisting business which can be handed down to a successor. If Raja Dhanrajgirji's business ceased to exist by his managing agency being cancelled there was nothing he could hand down to the Hindu undivided family and there was nothing which the Hindu undivided family could succeed to. Mr. Joshi says that both Raja Dhanrajgirji and the Hindu undivided family were doing the same business, viz., the business of the managing agents. That again is fallacious. The mere fact that the nature of the business is the same does not mean that in law the businesses are the same. Clearly there was a discontinuance of the business which Raja Dhanrajgirji was doing when his managing agency was terminated and the business which the Hindu undivided family started was a new business and they did not continue the same business which Raja Dhanrajgirji was doing. Mr. Joshi relies on the tripartite agreement to show that the Hindu undivided family really succeeded to the business of Raja Dhanrajgirji. Far from the tripartite agreement supporting the case of the Commissioner, it supports the case of the assessee company, becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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