Commissioner Of Income Tax Chennai v. Southern Group Idnustries Limited Raja Annamalai Building

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.01.2008 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANAND THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN T.C.NO.37 OF 2008(Appeal.37/2008) Commissioner of Income TaxChennai ... Appellant Vs. Southern Group Idnustries LimitedRaja Annamalai Building19, Marshalls Road,Chennai – 8. ... Respondent For Appellant: Mr.J.Narayanaswamy Tax Case Appeal filed under Section 260-A of the Income-tax Actagainst the order of the Income Tax Appellate Tribunal, "C" Bench,Chennai in M.P.No.271/Mds/06 in I.T.A.No.156/Mds./01 dated 31.7.2007 forthe assessment year 1997-98 against the order dated 18.10.2000 inITA.No.138/2000-01 on the file of the Commissioner of Income Tax (A) V,Chennai - 34 against the order dated 13.03.2000 in PAN/GIR.No.28-S onthe file of the Joint Commissioner of Income Tax, Special Range VI,Chennai - 600034. JUDGMENT (Judgment of the Court was made by K.RAVIRAJA PANDIAN,J.) This appeal is filed by the revenue against the order of the IncomeTax Appellate Tribunal, "C" Bench, Chennai in M.P.No.271/Mds/06 inI.T.A.No.156/Mds./01 dated 31.7.2007 for the assessment year 1997-98formulating the following question of law: "1. Whether in the facts and circumstances of thecase, the Tribunal was right in dismissing theMisc.Petition filed by the revenue wherein it was pleadedthat the additional ground was not considered by theTribunal while disposing the appeal? https://hcservices.ecourts.gov.in/hcservices/ 2. The miscellaneous petition in M.P.No.271/Mds/06 inI.T.A.No.156/Mds./01 came to be filed by the revenue in the followingcircumstances: The assessing officer while passing the assessment order for theassessment year 1997-98 inter alia restricted the deduction underSection 80IA to the business income and excluded the income from othersources. Aggrieved by the assessment order, the assessee filed appealbefore the Commissioner of Income-tax (Appeals), who allowed the saidissue in respect of Section 43B in favour of the assessee. 3. Aggrieved against the order of the Commissioner of Income-tax(Appeals), the revenue filed appeal to the Tribunal. In the appeal, theissue relating to Section 80IA was not raised. It is the case of therevenue that during the pendency of the appeal before the Tribunal,additional ground contesting the allowance of deduction under Section80IA was filed. Despite raising of additional grounds, that has not beenconsidered by the Tribunal while passing the order on 20.8.2003. On thatbasis, the M.P. has been filed. The Tribunal after perusing the appealfolder has recorded a factual finding that no such additional ground hasbeen raised and received by the Tribunal and as such the petition filedby the revenue that the additional ground in respect of the issuerelating to Section 80IA was not considered was not correct when no suchground was in fact raised. 4. Learned counsel for the revenue submits that it is a fact thatthe assessing officer has raised such additional ground and that hasbeen received by the authorised representative. He further admits thatit is also true that in the appeal folder on the file of the Income-taxAppellate Tribunal, the additional ground raised is not available. Inthose circumstances he sought for liberty to file appeal by raising thatground. 5. We heard the argument of the learned counsel for the revenue. 6. What is put in issue in the present appeal is correctness of theorderpassedbytheTribunalinM.P.No.271/Mds/06inI.T.A.No.156/Mds./01 dated 31.7.2007. When it is admitted that theappeal folder did not contain the additional ground, necessarily theM.P. has to be rejected and rightly the Tribunal has rejected the M.P.If the revenue is entitled to file an appeal by raising the issue as tothe allowability of Section 80IA under the statute, it is well open tothe revenue to do so, if they so advised. With this observation, the appeal is dismissed as no question oflaw is involved. Sd/Asst.Registrar 5. We heard the argument of the learned counsel for the revenue. 6. What is put in issue in the present appeal is correctness of theorderpassedbytheTribunalinM.P.No.271/Mds/06inI.T.A.No.156/Mds./01 dated 31.7.2007. When it is admitted that theappeal folder did not contain the additional ground, necessarily theM.P. has to be rejected and rightly the Tribunal has rejected the M.P.If the revenue is entitled to file an appeal by raising the issue as tothe allowability of Section 80IA under the statute, it is well open tothe revenue to do so, if they so advised. With this observation, the appeal is dismissed as no question oflaw is involved. Sd/Asst.Registrar /true copy/ Sub Asst.Registrar uskCopy to:1. The Assistant Registrar,The Income-tax Appellate TribunalMadras 'C' Bench,Rajaji Bhavan, Chennai. 2. The Commissioner of Income-taxAppeal (V), Chennai – 600 034. 3.The Joint commissioner of Income-taxSpecial Range VI, Chennai – 600 034. 4. The Income-tax OfficerCompany Circle VI(3), Chennai.5. The Secretary,Central Board of Direct Taxes,New Delhi.1 cc To Mr.J.Nareshkumar, (Jr.SC for IT), SR.4396.T.C.(A) NO.37 of 2008VC(CO)RVL 08.02.2008