TMI Blog1956 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows:- 12. The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal; but the Tribunal, in deciding the appeal, shall not be confined to the grounds' set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule. The proviso to this rule is not necessary for the decision of the matter concerned. The facts giving rise to the reference are as follows. The assessee in a Hindu undivided family and the assessment year is 1945-46. The accounting year of the assessee maintained for the purposes of his business accounts is the Diwali year 2001 Samvat corresponding to from the 28th October, 1943, to the 16th Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the financial year next preceding the assessment year under section 2(11)(c) of the Income-tax Act. The assessee prayed before the Tribunal that on this legal ground, which went to the root of the assessment, the assessee was not liable to be taxed in the assessment year 1945-46. The Appellate Tribunal, however, disallowed the prayer of the assessee to add this ground as an additional one to his memorandum of appeal, remarking as follows :- At the time of hearing, an additional ground was sought to be urged, but as no valid excuse was pleaded for not having raised it earlier, we rejected it. It was argued on behalf of the assessee that this important point of law was not urged earlier as it was ignorant of the view expressed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluded as secret profits from undisclosed sources, as in the present case, was not from the business of the assessee, but from a separate source and no account was maintained by the assessee in respect of the amount, nor had it exercised any option as regards the previous year with respect to that source. The Appellate Tribunal, admittedly, has not applied its mind whether the cash credits, which represented secret profits of the assessee, were from the same source of business or from a separate one. It appears that these sources have not been disclosed by the assessee who has, apparently, not maintained any account regarding the same. The Tribunal, therefore, should have considered the question in the light of the decision mentioned above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pel owing to the conduct of the litigant applies. The present case, however, cannot be said to be one inconsistent with that set up before by the assessee. It was a matter which, according to the assessee, was unknown to him and which had received the consideration of the Appellate Tribunal in several cases irrespective of whether such a ground was pressed or not. In Balaram v. Mangta Das [1907] ILR 34 Cal. 941 a Special Bench of the Calcutta High Court held as follows : Though an objection upon the question of limitation was not raised in the memorandum of appeal, leave should yet be given to argue it as the point arose on the face of the plaint, and no question of fact had to be enquired into to enable the Court to dispose of it, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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