TaxTMI 
TaxTMI 
2006 (4) TMI 85
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....tantial questions of law: "1. Whether section 43B of the Act empowers the assessing authority to make addition to the income of the assessee of the amount representing the employees' contribution to the provident fund, which although credited to the employees account but not deposited during the relevant accounting year and also having not been claimed as a deduction in the profit and loss account of the relevant assessment year? 2. Whether the Income-tax Appellate Tribunal has not exceeded its jurisdiction in going into the issue not arising out of the order of the Commissioner of Income-tax (Appeals) and which were not the subject matter of appeal before the Tribunal? 3. Whether in view of the specific grounds of appeal taken by the appellant before the Tribunal and no prayer for amendment of the grounds of appeal having been made before the Tribunal, the Tribunal has not exceeded its power and jurisdiction in deciding on a different issue altogether which was not the subject-matter of appeal before the Income-tax Appellate Tribunal?" We have heard Dr. A.K. Saraf, learned senior counsel for the appellant/assessee and Mr. U. Bhuyan, learned standing counsel appearing on behalf....
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....s the provident fund amount and was not deposited within the previous year and therefore the said amount has to be treated as income of the assessee as he is not entitled to any deduction of such amount from his income under section 43B of the Act. Learned standing counsel has further submitted that whether he has claimed deduction or not is immaterial as the said amount is automatically treated as income of the assessee and the assessee will be entitled to deduction of the said amount from the income provided such amount is actually paid by him. Countering the argument put forward by the assessee that the learned Tribunal has no jurisdiction to go into the aforesaid question on the ground that the Revenue in the appeal before the learned Tribunal did not set up any ground in that respect, Mr. Bhuyan has submitted that it is evident from the grounds taken in the memorandum of appeal preferred before the learned Tribunal that a ground has specifically been taken challenging the decision of the Commissioner of Income-tax (Appeals) in deleting the said amount from the income of the assessee and therefore the learned Tribunal, in view of the provision contained in section 254 of the Ac....
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....le under section 43B will be available to the assessee only if the amount so deducted by the employer/assessee from the salaries of the employees is actually paid by him within the time allowed under the said provision. The assessee having not paid the same after deduction from the salaries of the employees and keeping with him is not entitled to claim deduction. The said amount therefore has to be treated as the income of the assessee in computing the income referred to in section 28 of the Act. The assessing authority has therefore, rightly taken the said amount of Rs. 3,41,911 as income of the appellant/assessee in computing the income under section 28 of the Act. The contention of learned senior counsel for the appellant/assessee that no deduction was claimed in respect of the said amount and therefore it cannot be treated as income for the purpose of computation of income under section 28 of the Act also cannot be accepted in view of the fact that the computation of the said amount as income is not dependent on whether the assessee claimed any deduction or not. The next ground of challenge to the order passed by the learned Tribunal is that it has exceeded its jurisdiction in....
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....ing with the provision of section 254 of the Act has held that the Appellate Tribunal has to confine itself to the grounds raised in the appeal but it is not open to the Tribunal to raise a ground or permit the party who had not appealed to raise a ground which will work adversely to the appellant. It has also further been held that if the Department did not file any appeal or cross objection it cannot be allowed to agitate other matters, which were not the subject-matter of the appeal before the Tribunal. A Division Bench of the Calcutta High Court in ITO v. R.L. Rajghoria [1979] 119 ITR 872 has also held that the jurisdiction of the Tribunal is confined to the question decided by the assessing authority or by the first appellate authority and the question whether the loss was capital loss or revenue loss which never arose before the said authority and not taken up in the grounds before the learned Tribunal, originally or subsequently, cannot be the subject-matter of the appeal. The apex court in Hukumchand Mills Ltd. [1967] 63 ITR 232, while considering the provisions of section 33(4) of the Indian Income-tax Act, 1922, which is exactly the same provision as in section 254 of th....