TMI Blog1992 (6) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... sum is not assessable for the assessment year 1976-77 ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that 'no benefit' can be said to have arisen to the assessee under the agreement ? (3) Whether, on the facts and in the circumstances of the case, the Tribunal is right in not considering the question also under section 28(iv) of the Income-tax Act ? The assessee, Khairunnissa Ebrahim, is the proprietrix of Ama Sea Foods, engaged in the processing of sea foods which are exported. She owed a sum of Rs. 10,17,371 to the Indian Tobacco Company Ltd. with whom she had certain business transactions. This sum represents the advances made by the said company to her from year to year against s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. He completed the assessment accordingly. On appeal, the Commissioner of Income-tax (Appeals) accepted the contention of the assessee that the requirements of section 41(1) were not satisfied in this case. Firstly, he held that the requirement of the section that an allowance or reduction should have been made in the assessments for some earlier years towards loss, expenditure or trading liability was not satisfied in this case. Secondly in any event, he held that the allowance should have been in respect of such loss or expenditure, to attract which the Income-tax Officer had to show that certain specific, explicit, unmistakably identifiable loss, deduction or allowance had been made in the past. This requirement was not satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal subsequently held that they were not in a position to entertain the additional ground raised in the appeal. The three questions have been referred as arising out of this order of the Tribunal. The assessee is not represented before us. Though notice was taken out to the assessee at the address given in the income-tax proceedings, all of them were returned unserved. This court ordered substituted service of the notice by affixing the notice in the front door of the last known place of her residence and on the notice board of this court. On the satisfaction of these conditions, this court declared on September 3, 1991, that there was sufficient notice of this reference to the assessee. We have heard counsel for the Revenue. He plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant before the Tribunal could raise any new or additional point for the first time in appeal before the Tribunal even though it had not been raised in any form either before the assessing authority or before the Commissioner of Income-tax (Appeals). We further hold that when once any such new or additional ground is raised before the Tribunal, they are duty-bound to entertain that ground and render a decision thereon either themselves or by remanding the matter if further investigation into the facts is necessitated. " In the light of this decision, the reasons given by the Tribunal for refusing to entertain the ground under section 28(iv) are not correct. The Tribunal was bound to entertain the ground despite the fact that it may require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and consideration of further evidentiary material, the Tribunal upheld the claim of the assessee that no benefit could be said to have arisen to her under the agreement. We do not find in the order any proper consideration of the questions arising under section 41(1) or of the requirements of section 28(iv). We are, therefore, satisfied that there has been no proper consideration of the matter either under section 41(i) or under section 28(iv). No definite finding has been rendered under either of these provisions. There has been no adequate consideration of the ingredients of the two sections or as to whether those ingredients have been satisfied justifying the Income-tax Officer's action in bringing the amount of Rs. 10,17,371 into the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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