TMI Blog2006 (4) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 and the said additional ground of appeal filed by the department have not been taken while deciding the case. 2. We have heard the learned representatives of both the parties and gone through the findings in the appellate order dated 29-8-2005 and also perused the record of the Tribunal. 3. The learned D.R. submitted that the additional ground filed by the Addl. CIT, Range I, Jammu in the departmental appeal in ITA No. 253 (ASR)/2003 was not taken up and decided by the Tribunal while deciding the departmental appeal for the assessment year 1999-2000 vide order dated 29-8-2005 and as such there appears a mistake apparent on record of the Tribunal, therefore, the order of the Tribunal dated 29-8-2005 may be recalled and modified and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that even if the additional ground is taken into consideration at this stage, it would not yield to any result because the order under section 154 has been held to be quashed because it was based on a debatable issue. 5. We have considered the rival submissions and material available on record. M.A. is filed in ITA No. 253(ASR)/2003 for the assessment year 1999-2000. This appeal of the revenue was heard along with other departmental appeals in ITA No. 363 (ASR)/1999 (assessment year 1990-91), ITA No. 364 (ASR)/1999 (assessment year 1992-93) and ITA No. 251(ASR)/2003 (assessment year 1996-97) along with the Cross Objection of the assessee No. 28 (ASR)/1999 in the assessment year 1992-93. The record of the Tribunal revealed that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the learned D.R. did not argue or press the departmental additional ground either for the purpose of admission or for the disposal in accordance with law. During the course of arguments in M.A. even the learned D.R. could not specify if the said additional ground was at all argued by the learned D.R. for admission or for disposal. No material or affidavit has been brought on record to prove that the additional ground was ever argued or pressed by the learned D.R. for the purpose of admission. Section 254(2) of the Income-tax Act provides that "the Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectify any mistake apparent from record, amend any order passed by it under sub-section (1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Karim Bakhsh v. Qadir Bakhsh AIR 1950 Lahore 126 (128), it is held as under:- "Where the judgment of the appellate Court stated specifically that certain points were argued before it and is silent as to other points raised in the Memorandum of appeal, it may be presumed that the said other points were abandoned by the appellant." 7. In Hirde v. Muhammad Abdul Hasan Khan AIR 1915 Oudh 193 (194)(DB), it is held as under:- "An appellant can give up any of the grounds of appeal at the hearing." 8. In the case of Raja v. Salawat AIR 1921 Lahore 229 (231), it is held as under:- "The Appellate Court is bound to give a decision only on those pleas which are urged and argued." 9. Same view is upheld in the matter of Daman Singh v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee moved M.A. before the Tribunal and it was submitted that the assessee's counsel did not raise the issue at the time of hearing by oversight but that will not preclude the assessee from raising it now since any laches on the part of the counsel should not make litigant suffer. It was, therefore, clear that the counsel for the assessee did not raise the issue at the time of hearing. The Tribunal considered it to be a situation deemed to have been decided against him or alternatively a situation which should be presumed that the concerned issue was not pressed before the Tribunal and accordingly dismissed the Miscellaneous Petition. In such matter, two questions were referred to the Hon'ble Kerala High Court for its opinion and on conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment years 1992-93,1993-94 and 1995-96 on the issues upon which order under section 154 had been passed on account of wrong claim of deduction. The revenue tried to justify filing of the appeals because the earlier appeals of the revenue were pending disposal before the Tribunal. This Tribunal while deciding the appeals of the revenue in ITA Nos. 364 (ASR)/1999 for the assessment year 1992-93 and the C.O. No. 28(ASR)/1999 filed by the assessee held that the proceedings under section 154 of the Income-tax Act are bad in law being taken on the debatable issue and accordingly quashed the orders under section 154 in the assessment year 1992-93. This order is followed in the assessment year 1999-2000. The CIT(A) also followed his order for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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