TMI Blog1953 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... at between the Mills, Raja Dhanrajgirji and the Hindu undivided family of Ramgopal. By this tripartite agreement Raja Dhanrajgirji gave up his managing agency of the Mills and Raja Dhanrajgirji requested the Hindu undivided family to accept the managing agency on certain terms and conditions. The Mills thereupon cancelled the managing agency of Raja Dhanrajgirji and by a fresh managing agency agreement appointed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went in appeal to the Tribunal and it made a grievance that the Appellate Assistant Commissioner had not allowed the company to raise this question of law, and in the alternative it urged upon the Tribunal itself to consider this question of law, and the view taken by the Tribunal was that it is not open to an assessee, who has not challenged a particular assessment before the Excess Profits Tax Officer on a particular ground of law, to challenge it subsequently either before the Appellate Assistant Commissioner or before the Tribunal, and the first two questions arise out of this decision of the Tribunal. Now, the right of appeal under the Excess Profits Tax Act is given under Section 17 and the right is given to any person who is aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was not competent to the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w it would be erroneous to contend that Section 31(2A) confers a power upon the Appellate Assistant Commissioner to permit an appellant to raise a ground not specified in the grounds of appeal. Sub-section (2A) must be rather looked upon as controlling the discretion of the Appellate Assistant Commissioner with regard to his right to refuse an appellant to raise a new ground, and the Legislature suggests that ordinarily the Appellate Assistant Commissioner should allow a new ground to be taken unless he is satisfied that the omission on the part of the appellant was wilful or unreasonable. But even this sub-section does not deal with a case where an appellant takes a ground in the grounds of appeal. According to the Tribunal, even though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re us by Mr. Joshi because these questions are capable of being shortly disposed on a very narrow point urged by Mr. Palkhivala. The real question that arises is this. The assessee company claimed the benefit of proviso 2 to Section 6(1) of the Excess Profits Tax Act, and that benefit is only permissible to a business which commenced on or after the 31st March, 1936. We are not concerned with the exact nature of the concession allowed to such a business under this proviso, and that question that we have to decide is whether for the purpose of this proviso it could be said that the business of the assessee company commenced on or after the 31st March, 1936. The contention of the assessee company is that its business commenced on or after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 busines ..... X X X X Extracts X X X X X X X X Extracts X X X X
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