TMI Blog2016 (2) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assessing Officer to see, whether the Assessee is eligible for claim of deduction u/s 10A or not and examine the eligibility criteria of the Assessee and whether the conditions laid down u/s 10A stands fulfilled and accordingly decide this issue afresh and in accordance with the provisions of the law. Thus, with this direction the appeal of the Revenue is treated as partly allowed for statistical purpose. - ITA NO. 6526/MUM/2012 - - - Dated:- 20-1-2016 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For The Appellant : Shri Naveen Gupta (DR) For The Respondent : Shri Anuj Kisnadwala ORDER PER AMIT SHUKLA, JM : The aforesaid appeal has been filed by the Revenue against the impugned order dt. 31.8.2012 passed by the CIT(A)-20, Mumbai for the quantum of assessment passed u/s 143(3) for the A.Y 2009-10, on the following grounds : 1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in deleting the disallowance of the deduction u/s.10B of the I.T Act amounting to ₹ 50,10,459/- 2. The Ld. CIT(A) has erred in allowing the deduction u/s.10B even though the assessee did not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions laid down for the eligibility criteria for Sec. 10A stands fulfilled. In support of his contention he filed a copy of the audit report certified by the Auditor in Form 56F for the claim dt. 11.1.2016 for which it has necessary approval. Thus, he submitted that alternately, the Assessee s claim u/s 10A should be entertained and same can be examined by the Assessing Officer afresh. 5. The ld. DR submitted that so far as allowability of deduction u/s 10B which was claimed by the Assessee and allowed by the ld. CIT(A), now stands reversed by the decision of the Hon ble Delhi High Court, therefore, the Revenue s appeal on this score should be allowed. Regarding the alternate plea of the ld. Counsel that claim of deduction should now be examined u/s 10A, he submitted that this plea or ground has neither been raised before the Assessing Officer nor the ld. CIT(A), therefore, the same cannot be raised at this stage. Further, the Assessee has neither filed any cross objection nor has taken any additional ground, therefore, such an oral plea made by the ld. Counsel cannot be entertained and Revenue s appeal should be allowed. 6. We have considered the rival contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise be eligible for claim of deduction under different provision when the eligibility criteria and conditions, as prescribed under a given provision are fulfilled. Even though the Assessee may not have filed any cross objection or appeal, but the parties are entitled to raise the ground or oral plea even when it has not been set forth in the memorandum of appeal, provided that firstly, it is arising out of facts and material on record and secondly, opportunity of hearing is provided to both the parties. The Tribunal is well within the power to entertain a ground or plea beyond those incorporated in the memorandum of appeal and this view has been laid down by the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. reported in 229 ITR 383 which has further explained and reiterated by the Hon ble Gauhati High Court in the case of Assam Company (India) Ltd. reported in 256 ITR 423. The relevant observation of the Hon ble High Court reads as under : Whether or not the applicant-company can be permitted to raise that plea only on the ground that it had not preferred any appeal or cross-objection against the order of the Commissioner of Income-tax (Appeals) is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguage of rule 11 which does not require the Tribunal to be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal provided the party who may be affected thereby had sufficient opportunity of being heard on that ground. In taking this view, we are conscious about the observations of the Madras High Court and the Calcutta High Court made in the decisions relied upon by learned counsel for the Revenue but we are, in the facts and circumstances of the case, persuaded to accept the observations of the apex court made in this regard in the case of National Thermal Power Co. Ltd. [1998] 229 ITR 383. We are therefore of the view that it is permissible on the part of the Tribunal to entertain a ground beyond those incorporated in the memorandum of appeal though the party urging the said ground had neither appealed before it nor had filed a cross-objection in the appeal filed by the other party. We must however hasten to add that in order to enable either the assessee or the Department to urge a ground in the appeal filed by the other side, the relevant facts on which such ground is to be founded should be available on record. In the absence of such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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