TaxTMI 
TaxTMI 
2009 (9) TMI 614
X X X X Extracts X X X X
X X X X Extracts X X X X
....s on deposits for securing export credit facilities, from the purview of 'profits of business' for computing deduction under s. 80HHC of the IT Act, 1961. 4. Further, your appellants wish to submit that interest under ss. 234B and 234C of the Act, need not be levied on your appellants because of the fact that their income if netting of interest is permitted is totally exempt under s. 80HHC of the Act and further even if the interest is leviable as business income, tax has been deducted at the source. In view of the tax deduction your appellants do not have liability to pay advance tax under the Act." 2. The assessee has also filed one petition for admission of additional ground, but at the place where he had to incorporate additional ground at p. 2 is blank and for reference purposes, the entire p. 2 is reproduced as under: "TTJ 289 supports the assessee's claim. The petitioner in the above circumstances raises the following additional ground: (Blank) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....02) 257 ITR 60 (Mad), K.S. Subbiah Pillai & Co. (India) (P) Ltd. vs. CIT (2003) 179 CTR (Mad) 522 : (2003) 260 ITR 304 (Mad) and Dollar Apparels vs. ITO (2007) 294 ITR 484 (Mad) and finally held that income from interest is assessed under the head "Other sources" in the light of the decision of Hon'ble Delhi High Court in the case of CIT vs. Shri Ram Honda Power Equipments (IT Appeal No. 78 of 2002) dt. 22nd Jan., 2007 [reported at (2007) 207 CTR (Del) 689-Ed.] that the question of netting interest does not arise and dismissed the ground of the appeal of the assessee. 3.2 Aggrieved by such order, the assessee has come up in appeal and while reiterating the submissions as made before the lower authorities has pleaded for allowing the claim of the assessee as disallowed by the AO, whereas the learned Departmental Representative has relied upon the order of the learned CIT(A) and various decisions relied upon to plead for confirmation of the impugned order. 3.3 We after having heard both the sides, considering the material on record find that basis and reasoning as given by the learned CIT(A) in the light of ratio of various decisions as discussed in his order from paras 4.2 to 4.9 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nreported decision. Therefore, in view of facts and circumstances, order on this point is set aside and restored on the file of the AO with the direction that in case, the assessee files copy of any such decision as mentioned hereinabove, the same should be considered regarding charging of interest under s. 234B and issue be decided afresh after giving due opportunity to the assessee. We hold and direct accordingly. 6. In the result, the appeal of the assessee gets partly accepted for statistical purposes. T.R. SOOD, A.M.: May, 2009 7. I have gone through the proposed order of the learned JM very carefully. I have also discussed the matter with him but I have not been able to persuade myself to agree with the view of the JM in respect of additional ground raised by the assessee. As far as other normal grounds are concerned, I agree with the view of the learned JM. Therefore, I am writing my separate order in respect of the additional ground. 8. For the sake of clarity, I am reproduci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Special Bench of the Tribunal in the case of ITO vs. Ekta Promoters (P) Ltd. (2008) 117 TTJ (Del)(SB) 289 : (2008) 10 DTR (Del)(SB)(Trib) 563. 9. Though the appeal number has been wrongly mentioned in the petition, if there was any problem on that account, the assessee should have been given an opportunity to rectify the petition. Once an additional ground has been admitted for adjudication then the same, in my view, cannot be rejected on hypertechnicalities i.e., proper ground has not been raised. Here, I would like to recall the decision of the Hon'ble jurisdictional High Court in the case of CIT vs. Smt. S. Vijayalakshmi (2000) 162 CTR (Mad) 569 : (2000) 242 ITR 46 (Mad) wherein it was observed that the Tribunal would be free when facts necessary were before the Tribunal to adjudicate that issue even in the absence of specific appeal or cross-objection by the assessee. I would like to reproduce the last para of the decision hereunder, which is very clear: "The Tribunal was not required to embark on an enquiry, which was outside the scope of the assessee's claim and the claim made by the assessee before the ITO was that the capital gain was a long-term capital gain. The fac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nbsp; 3rd June, 2009 Since there is difference of opinion between the Members constituting the Bench in some of the issues involved in this appeal, the following questions are formulated and referred for nominating Third Member: 1. Whether in view of the facts and circumstances of the case and in the absence of any additional ground having been raised and in the absence of petition in respect of concerned appeal, still additional ground could be inferred and admitted or no cognizance in this regard requires to be taken? 2. If answer to question No. 1 is yes, whether the so-called additional ground inferred and admitted could be allowed or in the absence of order of JM on this point, matter requires to be placed before the Bench again for consideration of the issue raised in the additional ground? T.R. SOOD, A.M.: 12th June, 2009 I have carefully gone through the questions framed by learned JM. I have discussed the matter with him. Despite this, I have not been....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion for additional ground, particularly when the arguments even on merits were heard in respect of this petition? (ii) If the answer to the question No. (i) above is "yes", whether relief can be allowed in the absence of the order of the learned JM in this respect in view of the fact that the matter is covered by the decision of the Special Bench of the Tribunal which was cited on behalf of the assessee? So far as the first point in both the sets is concerned, in substance, there is no difference between the two Members. In other words, the point of difference is whether additional ground could have been admitted or not on the given facts and circumstances of the case. So far as second point is concerned, the points formulated by the two Members can be combined into one. Accordingly, I reframe the points of difference as follows: (i) Whether additiona1 ground was raised by the assessee or not and if raised, could it be admitted on the given facts and circumstances of the case? (ii) If the answer to the above question is yes, could the assessee be granted relief on the basis of the adjudication by one Member, or, should it be placed again before the Bench for a decision on meri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sing the ground in the memo of appeal is not wilful and has drawn support from the judgment of the Supreme Court in the case of NTPC. Thus, it is clear that though the space provided by the assessee to mention the actual ground is left blank, the preceding narration sets out a plea to raise the additional ground. Leaving the earmarked space blank is nothing but an oversight. It does -not obliterate the prayer of the assessee contained in the narration preceding the blank space. To reject the prayer of the assessee on such a hypertechnical ground is to defeat the very purpose of such statutory Tribunals. In their treatise "Administrative Law", the learned authors Sir William Wade and Christopher Forsyth (9th Edn.) at p. 906 mention that Tribunals exist in order to provide simpler, speedier, cheaper and more accessible justice than do the ordinary Courts. Again, at p. 930 it is stated, "A statutory Tribunal is not normally bound by the legal rules of evidence. It may therefore receive hearsay evidence, provided always that the party affected is given a fair opportunity to contest it, as natural justice requires". Both these principles are enshrined in the Tribunal also. The first pri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arned AM has referred to in his order. Moreover, the ground sought to be raised is not altogether a new ground but it arises from the order of the CIT(A). It also does not require any fresh investigation into the facts of the case. It is clearly a legal ground which the learned AM has rightly admitted. Mentioning of wrong income-tax appeal number on the petition is also not fatal to the admission of the additional ground. In fact, instead of 665, No. 666 is written. This can be safely treated as a typographical error. I could not find a word signifying higher degree of technicality than the word "hypertechnical" and hence I leave it at that. Therefore, so far as the first question is concerned. I agree with the view taken by the learned AM. 7. We now come to the second question. The question as reframed by me is whether assessee can be given relief on the basis of the order of the learned AM when the learned JM has not adjudicated on the merits of the relief sought for. In this connection, the contention of the learned counsel was that when the arguments were heard by the Bench from both the sides, no dispute was raised by the Bench. Thus, when the parties were heard on the merits....