2011 (1) TMI 50

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....t expenditure of Rs. 7,85,81,403 incurred by the appellant during the previous year". 2. Countering these submissions, the ld. DR stated that, during the course of hearing of the appeal, no such issue was argued on behalf of the assessee and hence it could not be construed as a mistake apparent from record. 3. Having heard both the sides and perused the relevant material on record, it is noted that the assessee's memorandum of appeal contains 11 grounds, which have been adjudicated by the Tribunal in the impugned order. The assessee's present miscellaneous application is on the alleged non-disposal of an additional ground. We have checked up our log book for 26.11.2009, being the date on which the said appeal was taken up for hearing.....

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....ifest that the onus of proving the impugned order as wrong to the extent appealed against, is always on the appellant. If it is not proved as wrong, either expressly or impliedly, the order is not disturbed. From here it follows that each and every ground raised by the appellant, in its appeal memo, has to be mandatorily dealt with in the order. Not disposing of a ground in the order, constitutes a mistake apparent from record. The appellant is always entitled to apply for rectification of such order, in which case the appellate authority shall be duty bound to rectify its order. This legal position is fully applicable to the Income-tax appellate tribunal as well. 5. However it is paramount to note that, the position discussed in the for....

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.... admission. The appellant has to demonstrate the reasons for which it could not be taken up earlier. If the additional ground satisfies the tests laid down by the Hon'ble Courts, such as, the ground involving only a question of law or any other question not requiring investigation of fresh facts etc, then such ground is admitted after considering the objections of the respondent. Only when such an additional ground is admitted, it comes on the same platform as the grounds taken up in the memo of appeal, requiring disposal by the tribunal and its non-disposal constituting an error apparent from record. If, however, such an additional ground is not admitted by the tribunal, the right of the appellant to its adjudication is lost. In such a sit....