1990 (12) TMI 30

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....und that the same did not arise out of the order of the Appellate Assistant Commissioner, not having been raised in grounds of appeal before the Appellate Assistant Commissioner ? (ii) Whether, in the facts and circumstances of the case, the assessee was entitled to the consideration of its claim under section 80J of the Income-tax Act 1961 ? (iii) Whether, in the facts and circumstances of the case, the Tribunal was justified in passing an ex parte order ?" The assessee is a limited company. It derives income from manufacture and sale of malleable castings, M. S. ingots, etc. This reference relates to the assessment year 1975-76. It is evident from the assessment order for this period that, while computing the income of the assess....

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.... incumbent upon it to decide the grounds raised in the memorandum of appeal on merits. In view of the law as laid down by the Supreme Court, the Tribunal considered each of the grounds taken by the assessee and decided them on merits but with regard to the ground pertaining to the claim under section 80J of the Act, the Tribunal refused to entertain the same for the reasons that (i) from the records, it is clear that the assessee did not take this ground before the Appellate Assistant Commissioner and (ii) this ground does not arise out of the order of the Appellate Assistant Commissioner. On these facts, the first question which precisely falls for consideration is whether the Tribunal has erred in refusing to entertain the ground pe....

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.... nor considered by them, and (a) relevant materials for adjudicating the issue are already on the record, or, (b) relevant materials are not on the record for adjudication of the issue and investigation into fresh facts was necessary ; (ii) a particular claim was made on the basis of a certain plea before the departmental authorities but for the first time before the Tribunal, an alternative plea or reasoning was advanced in support of the said claim ; (iii) an issue was raised before the departmental authorities but no ground in relation thereto was set forth in the memorandum of appeal and was sought to be raised by the appellant before the Tribunal subsequently. There are a catena of cases decided by various High Courts answerin....