2011 (11) TMI 431

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....er section 36(1)(viii) of the Act at the figure of Rs. 3,60,15,81,221, instead of Rs. 4,02,58,78,370 as claimed by the appellant-assessee. This difference was on account of the fact that the assessee had computed the said deduction on gross basis, whereas the Assessing Officer had computed the said deduction, net of expenses. Some other issues were also involved.   3. Against the said assessment, the appellant filed an appeal before the Commissioner of Income-tax (Appeals) ("the CIT(A)", for short). Ground No. 4 of the grounds of appeal reads as under :   "4. That the learned Additional Commissioner of Income-tax has erred in granting deduction under section 36(1)(viii) of the Income-tax Act at Rs. 3,60,15,81,221 as against ....

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....er section 36(1)(viii). So this ground of appeal stands allowed for statistical purposes."   6. It is clear from the aforesaid paragraph, the question of deduction under section 36(1)(viii) was remitted to the Assessing Officer in terms of its earlier decision of the Tribunal for the assessment year 1996-97. 7. The Tribunal did not decide the same question relating to section 36(1)(viii) in the appeal for the assessment year 2003-04, in spite of the ground raised by the assessee, which has been quoted above.   8. The appellant thereafter filed an application under section 254(2) of the Act stating that the ground mentioned above was not decided in the order dated August 31, 2009, and the same should be decided. The said a....

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....actually wrong and incorrect. We are satisfied that the appellant had raised ground No. 4 before the Commissioner of Income-tax (Appeals) and accordingly the appellant had raised the ground in the appeal before the Tribunal that the claim under section 36(1)(viii) was not considered by the Commissioner of Income-tax (Appeals) and was not decided by him. Once a question/ground is raised but not decided, it arises and failure to decide can be made the subject-matter of the appellate proceedings. Therefore, no application to raise an additional ground was required to be filed before the Tribunal. As to whether a particular question does or does not arise out of the impugned order was considered in CIT v. Scindia Steam Navigation Co. Ltd. [1961....