TMI Blog2017 (4) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... ised earlier for good reasons. - In such cases, the raising of additional ground could be allowed. In this case, there is nothing on record to indicate as to what was the reason which prevented the appellant assessee from raising a claim for deduction under Section 80IA of the Act for subject assessment year during the proceedings before the Assessing Officer and the CIT(A). Therefore, in the above facts , the view taken by the Tribunal in not allowing the appellant to raise additional ground in appeal is correct. Where only a pure question of law arises from facts which are already on record, then there is no reason why the appellate authority should not consider the question of law so as to determine the correct tax liability of an assessee in accordance with law. However, where evidence is to be examined and that is not on record, then it will be considered only if the parties seeking to raise the additional ground satisfies the authority concerned that for good and sufficient reasons, the ground could not be raised before the lower authorities. In the present facts, no such ground has been made out by the assessee before the Tribunal. In the present facts, as pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 80IA of the Act in respect of the Rail System established at Chhatisgarh, Andra Pradesh, Tamil Nadu and West Bengal; (b) Sales Tax exemption benefit received by the appellant assessee was held to be a revenue receipt when according to the respondent Revenue it was a capital receipt; (c) The disallowance under Section 14A of the Act at a sum higher than that offered for disallowance was not justified in law; and (d) The disallowance in respect of the provisions for expenses made for employees stock option plan (ESOP). 7] The CIT (A) by an order dated 21st December, 2011 partly allowed the appellant assessee's appeal. The appeal was allowed on all issues except on issue of disallowance of expenditure under Section 14A of the Act and on provision for expenses made for ESOP. 8] Being aggrieved, the appellant assessee carried the issue in further appeal to the Tribunal. The appeal as filed urged issues only in relation to disallowance under Section 14A of the Act and disallowance of provision for expenses made for ESOP. However, before the Tribunal, the appellant assessee sought to raise an additional ground at the time of the hearing of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain the correct tax liability of an assessee in accordance with law. Thus, the additional ground ought to have been allowed to be raised, even if the same was not urged before the lower Authorities. (b) In any case, the primary facts i.e. the evidence of a jetty / port having been in operation since the Assessment Year 199899 was known the Revenue. In the above view, the primary facts being on record, the appellant assessee was entitled to raise an additional ground in the appeal; and (c) In any case, in the present case, the facts in support of the additional ground being urged were already on record before the Tribunal inasmuch as the appellant assessee's claim for benefit of deduction under Section 80IA of the Act in respect of its Jetty / Port was granted in the subsequent assessment year namely Assessment Year 2009-10 and, therefore, there was evidence on record to allow the urging of the additional ground. 11] As against the above, Mr. Chanderpal, learned Counsel appearing for the respondent Revenue in support of the impugned order submits as under :Uday (a) An additional ground could be urged by the appellant assessee for the first time in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perating or for developing, operating and maintaining the new infrastructure facility. It is only on examination of those details as submitted by the auditor in Form 10CCB that the claim of deduction can be considered. It is undisputed that for the subject assessment year, no Form 10CCB has been filed by the appellant assessee. Therefore, there is no evidence on record for subject assessment year to allow the claim. The submission of Mr. Agrawal for the appellant that primary evidence in the form of jetty is on record is not acceptable. Mere ownership or existence of jetty is not evidence of eligibility to the benefit of Section 80IA of the Act, which is admittedly conditional upon satisfaction of certain requirements as provided therein. 13] However, Mr. Agarwal, learned Counsel appearing for the appellant assessee contends that in any case for the subsequent assessment year i.e. Assessment Year 2009-10, the appellant assessee had made a claim for benefit of deduction under Section 80IA in respect of its jetty / port and the same was allowed by the Assessing Officer. According to him, there is no difference in the earlier assessment year which would warrant the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the appellate authorities provided the evidence is on record. If the submission of Mr. Agarwal is accepted, that a new ground alongwith fresh evidence can be urged before the appellate authorities, even if not raised earlier without anything more (such as decision of Court or valid reasons for not raising the claim earlier) would unsettle the settled law. Accepting above submission would lead to great uncertainty and fall foul of one of the basic tenets of good tax administration i.e. finality to assessments. 16] It was then contended by Mr. Agarwal that evidence for the subject assessment year is on record in the form of an assessment order for the subsequent assessment year. Therefore, the additional ground raised should have been admitted for consideration. 17] In support, he placed reliance upon the decision of the Punjab Haryana High Court in Atlas Cycle Industries Ltd. v. C.I.T., Patiala (133 ITR 231) and the decision of the Calcutta High Court in Indra Singh Sons Pvt.Ltd. v. Union of India another (LXIV ITR 501). Both the aforesaid decisions arise out of rectification applications filed before the authorities and the words for consideration were m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal or before the High Court. Notwithstanding the above, the Apex Court held that even if it is assumed that such an issue of additional ground was raised before the Tribunal, it was open to the Tribunal to consider the additional ground and for that purpose, remand the issue. The Court held that the question for consideration in appeal from orders of lower authorities was the proper written down value of the buildings and machinery. Therefore the additional ground to determine the above issue could be raised. 20] In this case, the issue of claim for deduction u/s 80IA of the Act was not the issue raised before the lower authorities. In the above case of Hukumchand Mills Ltd. (supra), it was not the case of the Assessing Officer that the evidence was not on record. In fact the order was passed on the basis of the evidence being already on record, but a new ground was being urged by the revenue. Thus, the aforesaid decision would not be of any assistance to the appellant. In the present facts, the evidence which would entitle the appellant to raise the issue of deduction under Section 80IA of the Act in respect of port / jetty by way of an additional ground before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gamated Electricity Co. Ltd. (supra) that the assessee sought to raise additional grounds before the Tribunal. However, the Tribunal refused to grant leave to the assessee to raise such an additional ground. As there was difference of opinion between various decisions of this Court, the matter was placed before the Full Bench to resolve the controversy. The Full Bench of this Court held that the parties are allowed to raise additional grounds before the Tribunal so long as they arise from the subject matter of the proceedings and not necessarily from the subject matter raised in the memo of appeal. The reliance was also placed upon the decision of the Apex Court in Jute Corporation of India Ltd. v. CIT (187 ITR 688) wherein the Apex Court permitted the appellant to raise an additional ground for the first time before the appellate authority claiming deduction of purchase tax liability because the same had become liable to payment subsequent to the assessment order. The Full Bench observed that the Apex Court in Jute Corporation of India Ltd. (supra) made reference to the decision of the Apex Court in Additional Commissioner of Income Tax Vs. Gurjargravures P. Ltd. (111 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 80IA of the Act was not made before the Assessing Officer or the CIT(A) but was made for the first time only before the Tribunal nor was there any evidence in support of the claim for the subject assessment year on record. Thus it stands covered by the above decision in Gurjargravures Pvt. Ltd. (supra). The aforesaid decision of the Apex Court was subject matter of consideration in Jute Corporation of India Ltd.(supra) wherein the Court while distinguishing Gurjargravures Pvt. Ltd. (supra) held that the additional ground could also be raised before the appellate Authority if such ground could not have been raised at the earlier stage i.e. when the return of income was filed. This is only when the assessee is able to satisfy the appellate Authority that the ground now raised was bona fide and the same could not have been raised earlier for good reasons. In such cases, the raising of additional ground could be allowed. In this case, there is nothing on record to indicate as to what was the reason which prevented the appellant assessee from raising a claim for deduction under Section 80IA of the Act for subject assessment year during the proceedings before the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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