Commissioner of Income Tax vs Southern Group Industries Ltd.

K. Raviraja Pandian, J.—This appeal is filed by the Revenue against the order of the Income Tax Appellate Tribunal, ""C"" Bench, Chennai in

M.P. No. 271/Mds/06 in I.T.A. No. 156/Mds./01 dated July 31, 2007, for the assessment year 1997-98 formulating the following question of

law:

Whether, on the facts and circumstances of the case, the Tribunal was right in dismissing the miscellaneous petition filed by the Revenue wherein

it was pleaded that the additional ground was not considered by the Tribunal while disposing of the appeal?

The miscellaneous petition in M.P. No. 271/Mds/06 in I.T.A. No. 156/Mds./01 came to be filed by the Revenue in the following circumstances.

The Assessing Officer while passing the assessment order for the assessment year 1997-98, inter alia, restricted the deduction u/s 80-IA to the

business income and excluded the income from other sources. Aggrieved by the assessment order, the assessee filed appeal before the

Commissioner of Income Tax (Appeals), who allowed the said issue in respect of Section 43B in favour of the assessee.

Aggrieved against the order of the Commissioner of Income Tax (Appeals), the Revenue filed appeal to the Tribunal. In the appeal, the issue

relating to Section 80-IA was not raised. It is the case of the Revenue that during the pendency of the appeal before the Tribunal, additional

ground contesting the allowance of deduction u/s 80-IA was filed. Despite raising of additional grounds, that has not been considered by the

Tribunal while passing the order on August 20, 2003. On that basis, the M. P. has been filed. The Tribunal after perusing the appeal folder has

recorded a factual finding that no such additional ground has been raised and received by the Tribunal and as such the petition filed by the Revenue

that the additional ground in respect of the issue relating to Section 80-IA was not considered was not correct when no such ground was in fact

raised.

Learned Counsel for the Revenue submits that it is a fact that the Assessing Officer has raised such additional ground and that has been received

by the authorised representative. He further admits that it is also true that in the appeal folder on the file of the Income Tax Appellate Tribunal, the

additional ground raised is not available. In those circumstances he sought for liberty to file appeal by raising that ground.

We heard the argument of learned Counsel for the Revenue.

What is put in issue in the present appeal is the correctness of the order passed by the Tribunal in M.P. No. 271/Mds/06 in I.T.A. No.

156/Mds./01 dated July 31, 2007. When it is admitted that the appeal folder did not contain the additional ground, necessarily the M.P. has to be

rejected and rightly the Tribunal has rejected the M.P. If the Revenue is entitled to file an appeal by raising the issue as to the allow ability of

Section 80-IA under the statute, it is well open to the Revenue to do so, if they are so advised.

With this observation, the appeal is dismissed as no question of law is involved.