IBRAHIM HAJI P Vs. COMMISSIONER OF WEALTH TAX

JUDGEMENT

(1.) THESE references, at the instance of the assessee, arise out of a common order passed by the Income-tax Appellate Tribunal, Cochin Bench, in W. T. A. Nos. 12/Coch. of 1991, 42/Coch. of 1990 and 161/Coch. of 1992. The relevant assessment years are 1983-84, 1984-85 and 1985-86.

(2.) IDENTICAL questions are raised in all the three cases. They are as follows ;

(3.) WE find it difficult to accept the contention raised on behalf of the assessee that the Tribunal has gone outside the subject-matter of the appeal when it sustained the addition Of Rs. 3.lakhs as payment made towards the cost of the building under construction. According to us, the subject-matter of the appeal was the addition of Rs. 3 lakhs. The decision in Pokhraj Hirachand v. CIT [1963] 49 ITR 293 (Bom) relied on by the assessee has no application in the present case. In that case, the question involved in the appeal was whether the payment of Rs. 3 lakhs was capital expenditure or revenue expenditure. But the Tribunal went into the question of fact as to whether the amount of Rs. 3 lakhs was paid at all. It was under these circumstances, the Bombay High Court took the view that the Tribunal has gone outside the subject-matter of the appeal. On the other hand, in CIT v. Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710 the apex court found that the subject-matter of appeal in that case was the right of the assessee to claim allowance for Rs. 93,215. Whether the allowance was admissible under one head or the other under Sub-section (2) of Section 10 of the Indian Income-tax Act, 1922, would not change the subject-matter. The Tribunal had jurisdiction to admit the expenditure as a permissible allowance in computation of the taxable income of the assessee when it held that the expenditure incurred fell within the terms of Section 10(2)(v) though not under Section 10(2)(vib). The matter arose under Section 33(4) of the Indian Income-tax Act, 1922, where the wording is similar to Section 24(5) of the WEalth-tax Act, 1957. The Supreme Court held that the questions, whether of law or of fact which relate to the assessment of the assessee, can be raised before the Tribunal, and while exercising the power under Section 33(4) of the Indian Income-tax Act, 1922, it would be open to the Tribunal to grant relief to the assessee on another ground, even when it rejects the contention raised by the assessee. By applying the same principle in the present case, we find no justification for the complaint of the assessee that the Tribunal has acted beyond its power under Section 24(5) of the WEalth-tax Act. It has to be noted that in the questions formulated, the assessee had not stated that ho opportunity was given to the assessee before the Tribunal took the view that the inclusion could be upheld as payment made towards cost of the building under construction.