AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 923
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....of the parties, the Court while adjourning the appeal had recorded the fact that the appeal itself could be disposed of finally at the stage of admission. 4] We admit the above question at paragraph no.2 above as giving rise to substantial question of law. At the instance and request of the parties, we take up the appeal itself for final disposal. 5] The appellant assessee is engaged in the business of manufacture, sale and trading of cement and cement related products. For the subject assessment year, the appellant assessee had filed its Return of Income declaring a total income of Rs. 1,287 crores. On 20th February, 2011, the Assessing Officer passed an order under Section 143(3) of the Act determining the appellant's income at Rs. 1,490 crores. 6] Being aggrieved, the appellant assessee carried the issue in appeal to the Commissioner of Income Tax (Appeals) [CIT(A)]. The grounds urged by the appellant - assessee before the CIT(A) were as under: (a) The disallowance of deduction under Section 80IA of the Act in respect of the Rail System established at Chhatisgarh, Andra Pradesh, Tamil Nadu and West Bengal; (b) Sales Tax exemption benefit received by the appellant assess....
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....ment year allowing the claim under Section 80IA of the Act cannot be considered as evidence for earlier assessment year, when the material facts to support such a claim for the subject assessment year is not on record before the Assessing Officer. This was by placing reliance upon the decision of the Supreme Court in National Thermal Power Co. Ltd.(NTPC Ltd.) Vs. Commissioner of Income Tax, 229 ITR 383. Moreover, the claim under Section 80IA of the Act has to be decided on many factors and the same not having been considered by the Authorities under the Act for the subject assessment year, the above additional ground in respect of deduction under Section 80IA of the Act in respect of Jetty / Port could not be allowed. 10] Being aggrieved, the appellant assessee is in appeal before us and Mr. Agarwal in support of the appeal submits as under : (a) The power of the Tribunal to admit additional ground in an appeal is very wide as its basic purpose is to ascertain the correct tax liability of an assessee in accordance with law. Thus, the additional ground ought to have been allowed to be raised, even if the same was not urged before the lower Authorities. (b) In any case, the primar....
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.... the Act in respect of its Jetty / Port either before the Assessing Officer or before the CIT(A). A claim for benefit under Section 80IA of the Act can only be made if the infrastructure facility such as Jetty / Port is, among other things, being run on the basis of an agreement for either developing or operating and maintaining or developing, operating and maintaining a new infrastructure facility. The sine qua non provided in Sub-Section (7) of Section 80IA of the Act is the furnishing along with its Return of Income, a report of audited accounts in Form 10CCB as required under Rule 18BBB(3) of the Act. The Form 10CCB which is required to be filed along with Return of Income has various details to be filled in, including the initial assessment year from which the deduction is being claimed, the nature of the activity carried out with regard to the infrastructure facility, namely, whether it is for developing or developing and operating or for developing, operating and maintaining the new infrastructure facility. It is only on examination of those details as submitted by the auditor in Form 10CCB that the claim of deduction can be considered. It is undisputed that for the subject....
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....wer authorities and the evidence of an Auditor as required by law in Form 10CCB of the Rules for eligibility of deduction under Section 80IA of the Act is not on record. This would be the evidence which would be subject to enquiry/examination by the Assessing Officer and/or the C.I.T. (A) before allowing the deduction claimed. This is a factual enquiry to be done at the time of assessment before the claim can be allowed. Thus the view of the Tribunal that the new ground urged could not be allowed to be raised as the same is dependent upon leading of evidence and verification of the same by the Authority before the claim under Section 80IA of the Act can be allowed, cannot be faulted. 15] Mr. Agarwal then contended that once the additional ground is allowed, he would lead evidence in support. This submission seeks to unsettle the settled position as laid down in NTPC Ltd. (supra) that additional ground can be urged before the appellate authorities provided the evidence is on record. If the submission of Mr. Agarwal is accepted, that a new ground alongwith fresh evidence can be urged before the appellate authorities, even if not raised earlier without anything more (such as decision....
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....d machinery for calculating depreciation u/s 10(2)(vi) of the 1922 Act. The Assessing Officer as well as the first appellate authority did not accept the assessee's contention that the original cost of the buildings and machinery be taken as written down value for the purpose of computing depreciation. It held that only that part of the depreciation which was actually allowed under the 1922 Act could be considered while arriving at the written down value of the fixed assets. The Tribunal remanded the entire issue to the Income Tax Officer to hold further enquiry with regard to whether or not the depreciation which was paid under the Industrial Tax Rules should be taken into account for the purpose of computing the written down value. In the aforesaid case, the Apex Court held that no objection with regard to the revenue raising the additional ground for the first time was raised before the Tribunal or before the High Court. Notwithstanding the above, the Apex Court held that even if it is assumed that such an issue of additional ground was raised before the Tribunal, it was open to the Tribunal to consider the additional ground and for that purpose, remand the issue. The Court....
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.... upon the Full Bench decision of this Court in Ahmedabad Electricity Company Ltd. v. CIT (199 ITR 351). In the above case, the issue involved was whether an additional ground could be raised before the Tribunal with regard to deductibility of the sums transferred to the contingency reserve and dividend control reserve. During the proceedings before the Assessing Officer for the AY 1962-63 to 1971-72, the appellant - assessee did not claim the deductions on account of sums transferred to contingency reserve and dividend control reserve. However, when the matter was pending before the Tribunal, this Court in the case of Amalgamated Electricity Co.Ltd. v. CIT (97 ITR 334) held that the amounts transferred to contingency reserve and dividend control reserve are allowed as deductions on revenue account. It is in view of the decision of this Court in the case of Amalgamated Electricity Co. Ltd. (supra) that the assessee sought to raise additional grounds before the Tribunal. However, the Tribunal refused to grant leave to the assessee to raise such an additional ground. As there was difference of opinion between various decisions of this Court, the matter was placed before the Full Bench....
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.... in the earlier assessment year, such as in this case so as to allow the deduction. 25] In fact, the issue with regard to the raising of new grounds in the absence of any evidence on record is no longer res integra in view of decision of the Apex Court in Addl. Commissioner of Income Tax Vs. Gurjargravures Pvt. Ltd.,(supra). In the above case, it has been held that an additional ground cannot be raised before the appellate Authority when no claim for a particular deduction was made before the original authority nor was there any material on record to support such a claim. Further the Court held that merely by allowing the deduction for a subsequent assessment year, it could not be held that conditions for availing the deduction in the subject assessment were also satisfied. In the present facts also, the claim for deduction under Section 80IA of the Act was not made before the Assessing Officer or the CIT(A) but was made for the first time only before the Tribunal nor was there any evidence in support of the claim for the subject assessment year on record. Thus it stands covered by the above decision in Gurjargravures Pvt. Ltd. (supra). The aforesaid decision of the Apex Court wa....