AMINES PLASTICIZERS LIMITED Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) AT the instance of the assessee, the following two questions have been referred under S. 256(1) of the INCOME TAX ACT, 1961 (for short, "the Act"), for opinion of this Court:

(2.) FOR the purpose of answering these two questions the facts of the case may, briefly, be stated as under: The assessee is a public limited company with its registered office at Guwahati, Assam, and head office at Bombay. The AO disallowed certain claims made by the assessee. Situated thus, the assessee preferred an appeal before the CIT(A). The CIT(A) also affirmed the order passed by the AO and, therefore, the assessee preferred yet another appeal before the Tribunal, Guwahati. However, the Tribunal affirmed the orders passed by the authorities below. According to the assessee, the additional ground urged by the assessee before the Tribunal at the time of hearing was not considered by the Tribunal. However, this ground was not taken in the memorandum of appeal. Situated thus, the assessee filed an application under S. 254(2) of the Act. The Tribunal heard the matter and by order dt. 29th July, 1991, dismissed the application refusing to consider the additional ground. While dismissing the application, the Tribunal observed thus :

(3.) NORMALLY , as per rule the grounds are to be stated in the memorandum of appeal before the Tribunal. But the parties are not prohibited from taking additional ground at the time of hearing. In this connection, reference may be made to r. 11 of the Income -tax (Appellate) Tribunal) Rules, 1963 (for short, "the Rules"). Under the said rule, 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. However, if the appellant desires to urge any additional ground, leave of the Tribunal has to be sought for. If such leave is granted, it will be incumbent on the part of the Tribunal to give full opportunity to the other side of being heard. In this case, the additional ground was urged by the assessee at the time of hearing of the appeal, but the Tribunal held that there was no application for admission of an additional ground and the same had been rightly not considered by the Tribunal at that stage and that it could not be said that there was an apparent mistake in the order requiring amendment to the order passed earlier. Rule 11 of the rules speaks only of leave and the leave may be sought for either in writing or by an oral prayer. As the Tribunal did not disbelieve that leave was sought for, in our opinion, the Tribunal ought to have appreciated the said additional ground.