Zenith Ltd v. Dy. Commissioner Of Income Tax, Circle 1(3) & Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORIGINAL SIDE INCOME TAX APPEAL NO.125 OF 2003 Zenith Ltd. vs. 1. Dy. Commissioner of IncomeTax, Circle 1(3) & Anr.Tax, Circle 1(3) & Anr. Appellant Respondents Ms. Vissanji with Mr.s.J. Mehta for the appellant. Mr.R.V.Desai, senior counsel with Mr.B.M. Chatterjeeand Ms.S.V. Bharucha for the respondents. CORAM: R. M. LODHA &J.P.DEVADHAR,JJ. DATED: 11th October 2004 ORALORDER :(Per R.M.Lodha,J.) law not formulated by it, if it is satisfiedthat the case involves such question. (6) The High Court may determine any issuewhich - (a) has not been determined by theAppellate Tribunal; or passed in appeal’ cannot be properly given nor do weventure to do that but suffice to say that in findingout whether the order is covered by the expression,‘every order passed in appeal’ within the meaning ofsection 260A of Income Tax Act, 1961, it has to be foundout that order affects the merits of the action bydetermining some right or liability. The order by theIncome Tax Appellate Tribunal declining the appellant toadd additional grounds is only an order procedural innature and cannot be said to affect the rights of suchparty. More so because it is always open to theaggrieved party to challenge such interlocutory order inthe appeal that may be preferred against the finalorder. The correctness of such interlocutory orderbeing open to be challenged in appeal that may bepreferred by the aggrieved person against the final order, we have no hesitation in holding that the present appeal is not maintainable. 5. To our specific query to the learned counsel for theappellant as to under which provision the applicationwas made by the appellant before the Tribunal foradditional grounds, the learned counsel for the appellant invited our attention to Rule 11 of the Appellate Tribunal Rules, 1963. 6. Rule 11 of the Appellate Tribunal Rules, 1963 reads thus: "11. The appellant shall not, except by leaveof the Tribunal, urge or be heard in supportof any ground not set forth in the memorandumof appeal, but the Tribunal, in deciding theappeal, shall not be confined to the groundsset forth in the memorandum of appeal or takenby leave of the Tribunal under this rule:Provided that the Tribunal shall not rest itsdecision on any other ground unless the partywho may be affected thereby has had asufficient opportunity of being heard on thatground."7. The order of the Tribunal declining to grant leaveto urge the grounds not set forth in the appeal does not determine the rights of the parties. The invocation of Rule 11 is procedural in nature and so also such order. 8. We are, therefore, of the view that the presentappeal preferred by the appellant under Section 260A isnot maintainable against the impugned order declining the appellant to raise additional grounds in the memorandum of appeal. 9. The appeal is, accordingly, dismissed as not maintainable. (R.M. LODHA,J.) (J.P. DEVADHAR,J.)