TMI Blog2001 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... reign exchange fluctuations debited in the profit and loss account by the asses see-company was a capital loss. 2. On the basis of the facts of the case and on the principles of law, the learned Commissioner of Income-tax (Appeals) should have held that the liability to repay the increased loan amount due to the foreign exchange rate fluctuation was not a revenue loss and was thus not allowed to be debited in the profit and loss account." The said move of the Revenue was strongly resisted by the assessee. Originally, by order dated March 30, 2000, the Tribunal admitted additional grounds with the following order: "30-3-2000: After going through the request for admission of additional grounds of appeal filed by the Department hearing both the sides, going through case laws as well as written submissions made in this regard, we admit the additional grounds of appeal sought to be admitted by the Department and treat these appeals as part heard to come up for hearing on April 28, 2000, however, the reasons for admitting the additional grounds shall be incorporated in the order to be passed in appeals." The aforesaid order of the Tribunal was assailed before this court in C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment and may result in withdrawing the relief allowed to the assessee. Learned counsel for the Revenue, on the other hand, submitted that by admitting additional grounds, no final decision on the merits is taken. Whether the additional grounds permitted to be added have any substance is to be adjudicated in the appeal itself. Mere admission of the ground of appeal does not result in enhancement of liability or withdrawal of relief. At this juncture, it would be appropriate to take note of the concept of appeal and various facets of the act of appealing. An appeal posits the existence of a superior forum with competence to deal with the subject matter of appeal. A remedy by way of appeal is statutory bounty. The modalities of the exercise of the right are conditioned by the provision which confers that right. It is fairly well settled that creation of an appellate remedy is a matter of substance. The modalities of the exercise of appeal are a matter of procedural or adjective law. When an aggrieved party approaches the appellate forum for modification of the order of an inferior authority there would be an appeal. The appeal may have very many defects or disabilities and ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, vary or set aside the judgment or decision or award of an inferior court on the ground that it was wrongly decided or that as a matter of justice or law it requires to be corrected. The ground or memorandum of appeal constitutes the basis on which such an application is made. A right to appeal is conferred by a statute or equivalent Legislative Assembly. While an appeal is the judicial examination, the memorandum of appeal contains the grounds on which the judicial examination is invited. (Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) Sales Tax [1968] 21 STC 154 ; AIR 1968 SC 488). In National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383, it was observed by the apex court that there may be several factors justifying the raising of a new plea in an appeal and each case should be considered on its own facts. Referring to an earlier decision in Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688 (SC), it was observed that the Tribunal must be satisfied that the ground raised is bona fide and that the same could not have been raised earlier for good reasons. The appellate authority should exercise discretion in permitting an assessee in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form or return it for being amended within such time as it may allow. On representation after such amendment, the memorandum shall be signed and dated by the officer competent to make an endorsement under rule 7." The said rule permits the Tribunal to reject a memorandum of appeal if it is not in the prescribed form. It has the power to return it for being amended within such time as it may allow. Rule 11 in terms provides that the appellant shall not except by leave of the Tribunal be heard in support of any ground not set forth in the memorandum of appeal. However, for deciding the appeal, the Tribunal shall not be confined to the grounds set forth in the memorandum of appeal or taken with the leave of the Tribunal under the Rules. As was observed by the apex court in Lakshmiratan Engineering's case [1968] 21 STC 154, the expressions "appeal" and "memorandum of appeal" are used to denote two different things. It is not proper to make appeal equivalent to memorandum of appeal. While the appeal is judicial examination, the memorandum of appeal contains the grounds on which judicial determination is invited. It is to be noted that rule 11 of the Tribunal rules is contextual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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