TMI Blog1990 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, not having been raised in grounds of appeal before the Appellate Assistant Commissioner ? (ii) Whether, in the facts and circumstances of the case, the assessee was entitled to the consideration of its claim under section 80J of the Income-tax Act 1961 ? (iii) Whether, in the facts and circumstances of the case, the Tribunal was justified in passing an ex parte order ?" The assessee is a limited company. It derives income from manufacture and sale of malleable castings, M. S. ingots, etc. This reference relates to the assessment year 1975-76. It is evident from the assessment order for this period that, while computing the income of the assessee, the Income-tax Officer had granted deductions in respect of depreciation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits. In view of the law as laid down by the Supreme Court, the Tribunal considered each of the grounds taken by the assessee and decided them on merits but with regard to the ground pertaining to the claim under section 80J of the Act, the Tribunal refused to entertain the same for the reasons that (i) from the records, it is clear that the assessee did not take this ground before the Appellate Assistant Commissioner and (ii) this ground does not arise out of the order of the Appellate Assistant Commissioner. On these facts, the first question which precisely falls for consideration is whether the Tribunal has erred in refusing to entertain the ground pertaining to the claim under section 80J merely because it was not raised before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady on the record, or, (b) relevant materials are not on the record for adjudication of the issue and investigation into fresh facts was necessary ; (ii) a particular claim was made on the basis of a certain plea before the departmental authorities but for the first time before the Tribunal, an alternative plea or reasoning was advanced in support of the said claim ; (iii) an issue was raised before the departmental authorities but no ground in relation thereto was set forth in the memorandum of appeal and was sought to be raised by the appellant before the Tribunal subsequently. There are a catena of cases decided by various High Courts answering the various facets of the problem indicated above. But, for the questions referred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal's discretion to entertain a new ground for the first time for any other consideration and, as such, advisedly, I am refraining from entering into those aspects. Since, in view of the above discussion, the Tribunal will be now required to consider the question of entertainment of the claim under section 80J of the Act raised by the assessee which was taken as a ground in the memorandum of appeal, it is not necessary to examine and give any opinion in respect of questions Nos. (ii) and (iii). Accordingly, my answer to question No. (i) is in the negative, i.e., in favour of the assessee and against the Department. Questions Nos. (ii) and (iii) need not be answered. There will be no order as to costs. Let a copy of this judgment be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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