The Commissioner of Income Tax vs Sociedade de Fomento Industrial Ltd.

P.B. Majmudar, J.—At the time of admitting this appeal, this Court has not formulated substantial question of law. The learned advocate for the appellant submitted that the substantial question of law which has been framed at page 9 may be treated as substantial question of law, which can be said to be formulated for deciding this appeal. The question which has been framed in the appeal memo is as under;

a) That this Hon''ble Court may be pleased to call for the records and proceedings relating to ITA No. 236/PN/96, from the Income Tax Appellate Tribunal, (ITAT) Panaji Bench, Panaji, and upon perusal and for scrutiny thereof, be pleased to quash and set aside the impugned judgment and order dated 30/12/2002 (Exhibit ''C'' hereto) by deciding the substantial question of law raised in para 5 of the Appeal Memoor such other substantial questions of law as may be framed with the leave of this Hon''ble Court in favour of Revenue.

It is not in dispute that before the Tribunal the said question was not formulated in the appeal memo nor was argued before the CIT(A). The Tribunal, therefore, while dealing with the said question which was argued at the time of hearing before the Tribunal, has observed asunder;

13.8 The CIT(A) erred in directing the Assessing Officer to exclude the miscellaneous income, dispatch income, sundry creditors written back and interesting come from total turnover for the purpose of computing deduction u/s 80HHC relying upon the decision of the ITAT reported in 47 ITD 1 and 50 ITD 37 and Board''s circular No. 621.

13.9 ...

13.10 Before us no material is put forward to suggest that there is any error in the order of learned CIT(A). However, Mr. Kanekar submitted that while arriving at the profits of business, the amounts of the nature referred in explanation (baa) to Section 80HHC should be excluded. Mr. Pandiwala submitted that the contention of learned DR cannot be accepted as the same is not part of the ground of appeal raised before the tribunal.

13.11 So far as direction of learned CIT(A) ii excluding the business income etc., from the total turnover, we do not find any infirmity in such direction. As regards the exclusion of such item from the profits of business under explanation (baa) to Section 80HHC, we are unable to decide the same is not not a part of ground of appeal raised before us. No additional ground has also been pressed into service. We, therefore, upheld the order of the learned CIT(A).

It is required to be noted that the Tribunal has, in turn, found that no material was placed before it to suggest that there is an error in the order of CIT(A). It has also been found by the Tribunal that the contention made before the Tribunal was not part of the ground of appeal raised before the Tribunal. The Tribunal has found that it is not in a position to decide the said question as it is not a part of the ground raised before the Tribunal. It is also found that no additional ground has been raised in this appeal. Learned Counsel for the appellant Mr. Rivonkar has also submitted that the same ground was also not raised before the CIT(A).

Considering the said aspect of the matter, no substantial question of law arises for determination of this Court. We, therefore, do not find any substance in the appeal. Appeal, therefore, is dismissed.