TMI Blog2001 (4) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional ground relating to claim under section 35B of the Income-tax Act, 1961, in respect of salary and postage expenses?" During the assessment year 1997-98 (sic), the assessee-respondent made a claim for weighted deduction under section 35B of the Income-tax Act, 1961 (for short, "the Act"), in respect of the expenses incurred during the previous year wholly and exclusively for promotion of sale outside India of the goods, services or facilities. He has claimed deductions in respect of travelling expenses incurred outside India in connection with the business under section 35B of the Act. Out of the claim of Rs.56,715 in respect of travelling expenses incurred outside India for the promotion of sale, only a partial claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee under section 35B of the Act. It also referred to the comparative statement of sales and expenses on different heads for the assessment years 1977-78 and 1976-77 which was annexed with the letter dated December 31, 1977, filed by the assessee. The extent of export sale and local sale and the proportion of expenses under various heads were also indicated. The assessee has merely claimed before the Commissioner of Income-tax (Appeals) that since salary and postage expenses were incurred for export as well as local business therefore, they had also to be considered for the purposes of section 35B of the Act in the proportion. In these circumstances, the Tribunal allowed the appeal by holding that the Commissioner has wrongly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rror on the part of the Income-tax Officer did not arise as no claim for such exemption under section 84 of the Act had been raised before him. The Tribunal in its order did not mention that there was any material on record to sustain the claim for exemption, which was made for the first time before the Appellate Assistant Commissioner. In this connection, it is worthy to note the provision of section 250 which lays down the procedure in appeal before the appellate authority against the orders of the Assessing Officer. The appellate authority has been named differently from time to time in the statute. Originally, the appellate authority was described at the relevant time as Appellate Assistant Commissioner. Subsection (5) of section 250 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is material or evidence before the Assessing Officer to support such claim. Such claim even if not raised before the Assessing Officer, if raised before the first appellate authority, he ought to consider and decide it, if he is satisfied about the bona fides. In each case, it has to decide on the facts of its own to entertain or not to entertain a new claim or new ground. Such was the view expressed by a three-judge Bench of the Supreme Court in CIT v. Kanpur Coal Syndicate [1964] 53 ITR 225 which was not noticed by the two-judge Bench deciding Gurjargravures' case [1978] 111 ITR 1 (SC). In Kanpur Coal Syndicate's case [1964] 53 ITR 225 (SC), which was not noticed by the two-judge Bench deciding Gurjargravures' case [1978] 111 ITR 1 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority cannot modify the assessment order on an additional ground even if not raised before the Income-tax Officer. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise, an appellate authority while hearing the appeal against the order of a subordinate authority, has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There appears to be no good reason and none wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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