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TMI Blog1966 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Income-tax (Central), Bombay, and the assessee. Civil Appeals Nos. 411 to 413 of 1965 are brought on behalf of the assessee and Civil Appeals Nos. 414 and 415 of 1965 are brought on behalf of the Commissioner of Income-tax (Central), Bombay. Hukumchand Mills Ltd. (hereinafter referred to as the " assessee ") is a public company incorporated in the previous Indore State. The assessee owns a textile mill there. Up to the assessment year 1949-50, it was being assessed in British India as a non-resident (except in 1948-49 when it was assessed as a resident), on such income as fell within section 4(1)(a) or 4(1)(c) read with section 42 of the Income-tax Act, 1922 (hereinafter referred to as the " Act "). After the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-resident and as depreciation, had been allowed to arrive at such total income, the same must be taken into account to arrive at the written down value as it had been actually allowed within the meaning of section 10(5)(b). The Income-tax Officer and the Appellate Assistant Commissioner rejected the contention of the assessee but the Tribunal, by its order dated October 8, 1958, held that only that part of the depreciation which entered into the computation of the taxable income of the assessee under the Act can be treated as depreciation " actually allowed " and not the total depreciation which went into the computation of the total income. It was urged before the Tribunal by the department that although the Income-tax Officer had not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (5) of the said Act. " In view of this submission made by the parties the Tribunal remanded the matter back to the Income-tax Officer for ascertaining whether any depreciation was allowed under the Industrial Tax Rules and for considering the question whether the said rules related to income-tax or super-tax or any law relating to tax on profits of business and if he decided these questions in favour of the department he should take into consideration such depreciation actually allowed under the said rules for the purpose of computing the written down value. Under section 66(1) of the Act the Tribunal referred the following questions of law for the determination of the High Court : " (1) Whether the words 'all depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the questions which the Tribunal has asked the Income-tax Officer to determine, are determined by the Income-tax Officer in favour of the department. " Civil Appeals Nos. 411 to 413 of 1965 : The sole question argued on behalf of the assessee in these appeals is that the Tribunal was not competent to go into the question whether the provisions of paragraph 2 of the Taxation Laws. Order were applicable to the present case and the respondent should not have been allowed to raise the contention for the first time before the Tribunal. It was also argued that the Tribunal ought not to have remanded the case to the Income-tax Officer for ascertaining whether any depreciation was allowed under the Industrial Tax Rules and whether such deprec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred upon the Appellate Assistant Commissioner by section 31 of the Act. Consequently, the Tribunal has authority under this section to direct the Appellate Assistant Commissioner or the Income-tax Officer to hold a further enquiry and dispose of the case on the basis of such enquiry. Rule 12 of the Appellate Tribunal Rules, 1946, made under section 5A(8) of the Act provides as follows : " 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 : Provided that the Tribunal shall not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxation Laws Order and remand the case to the Income-tax Officer in the manner it has done. It is necessary to state that rules 12 and 27 are not exhaustive of the powers of the Appellate Tribunal. The rules are merely procedural in character and do not, in any way, circumscribe or control the power of the Tribunal under section 33(4) of the Act. We are accordingly of the opinion that the Tribunal had jurisdiction to entertain the argument of the department in this case and to direct the Income-tax Officer to find whether any depreciation was actually allowed under the Industrial Tax Rules and whether such depreciation should be taken into consideration for the purpose of computing the written down value. For these reasons we reject t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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