M/s. EKL Appliances Ltd., New Delhi V. ACIT, New Delhi

ITA 653/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3793 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-06-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 11-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS KAVOTA BHATNAGAR
• Assessee Lawyers: SAHILESH SHAH; ASHOK SINGH CAS
• Keywords: Opportunity of being heard; Question of law; Right to appeal; Capital receipt; Revised return
• Section: 143(3); 251; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: B NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI A.K.GARODIA, ACCOUNTANT MEMBER ITA NO: 653 /DEL/2010 ASSESSMENT YEAR : 2003-04 M/S EKL APPLIANCES LTD. VS. ACIT, CIRCLE 11 (1) VIDEOCON TOWER, 12 TH FLOOR NEW DELHI BLOCK E-1, RANI JHANSI ROAD JHANDEWALAN EXTENSION NEW DELHI 55 (APPELLANT) (RESPOND ENT) APPELLANT BY : SH. SAHILESH SHAH & SH. ASHOK SINGH, CAS RESPONDENT BY : MRS. KAVOTA BHATNAGAR, CIT, D.R. O R D E R PER C.L.SETHI, JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DT. 27 .11.2009 PASSED BY THE LD.CIT(A) IN THE MATTER OF ASSESSMENT MADE U /S 143(3) OF THE INCOME TAX ACT, 1961 FOR THE A.Y. 2003-2004. 2. GROUNDS OF APPEAL NO. (A), (B) AND (C) RAISED BY THE ASSESSEE REVOLVE AROUND THE ISSUE AS TO WHETHER ASSESSEES C LAIM THAT VOLUNTARY DISCRETIONARY GRANT RECEIVED FROM HOLDING COMPANY I S TO BE CONSTRUED AS 2 CAPITAL RECEIPT AS AGAINST REVENUE RECEIPT WRONGLY SHOWN IN THE RETURN OF INCOME SHOULD BE ALLOWED TO BE CONSIDERED BY THE LD .CIT(A) WHILE DECIDING THE APPEAL AGAINST THE ASSESSMENT ORDER MA DE BY THE A.O. U/S 143(3) OF THE ACT. IN THIS CASE, THE ASSESEE COMP ANY HAD RECEIVED VOLUNTARY DISCRETIONARY GRANT OF RS. 50,00,00,000/- FROM THE HOLDING COMPANY, NAMELY, M/S A.B.ELECTROLUX, SUDAN. THIS AMOUNT RECEIVED BY THE ASSESSEE WAS SHOWN UNDER EXCEPTIONAL ITEMS (IN SCH. 17 OF AUDITED ACCOUNTS), WHICH FORMS PART OF THE PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31 ST MARCH, 2003. THIS WAS INCLUDED IN THE INCOME DECLARED BY THE ASSESEE IN THE RETURN OF INCOME FI LED BY THE ASSESEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE REVISED THE COMPUTATION OF INCOME, WHERE THE ASSESEE TREATED T HE AFORESAID GRANT TO BE OF CAPITAL IN NATURE, AND CLAIM THE SAME TO BE NOT CHARGEABLE TO TAX. THE ASSESEES CLAIM WAS REJECTED BY THE A.O. FOR TH E REASON THAT THE I) ASSESEE HAS NOT FILED ANY REVISED RETURN WITHIN THE MEANING OF S.139(5) OF THE ACT TO CLAIM THE SAME TO BE NOT CHARGEABLE TO T AX AND II) MERELY BY FILING REVISED COMPUTATION OF INCOME, THE CLAIM CA NNOT BE ENTERTAINED IN THE LIGHT OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. VS CIT (2006) 284 ITR 323 (S.C.), AND I II) EVEN OTHERWISE, THE GRANT RECEIVED BY THE ASSESSEE WAS OF REVENUE IN NA TURE CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE COMPANY. 3 3. BEING AGGRIEVED THE ASSESEE PREFERRED THE APPEAL BEFORE THE LD.CIT(A). BEFORE THE LD.CIT(A), THE ASSESSEE SUB MITTED WRITTEN SUBMISSIONS CITING VARIOUS DECISIONS IN SUPPORT OF THE CLAIM THAT THE ASSESSEES CLAIM THAT THE GRANT RECEIVED BY THE AS SESSEE WAS NOT LIABLE TO BE TAXED BEING OF CAPITAL IN NATURE, AND THE SAME CLAIM CAN BE MADE BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. TH E ASSESSEES SUBMISSIONS HAS BEEN REPRODUCED BY THE LD.CIT(A) IN HIS ORDER. HOWEVER, LDCIT(A) DECIDED THE MATTER BY OBSERVING A S UNDER. I HAVE GONE THROUGH THE ABOVE SUBMISSION OF THE AP PELLANT, HOWEVER IT IS A SETTLED LAW AS LAID DOWN BY THE SUP REME COURT IN THE CASE OF GEOTZE INDIA LTD. VS CIT 284 I TR 323 THAT THE APPELLANT IS NOT EMPOWERED TO MAKE A NEW C LAIM WHICH WAS NOT MADE IN THE RETURN OF INCOME BEFORE T HE ASSESSING OFFICER AND ONLY RECOURSE OPEN TO THE APP ELLANT IS TO REVISE ITS RETURN OF INCOME FOR MAKING SUCH A CL AIM. THE POWERS OF THE 1 ST APPELLATE AUTHORITY ARE COTERMINOUS WITH THE AO AND THE FOLLOWING THE LAW LAID DOWN BY THE S UPREME COURT, THE 1 ST APPELLATE AUTHORITY, TOO, CANNOT ENTERTAIN THE NEW CLAIM MADE BY THE APPELLANT WHICH WAS NOT MADE BY WAY OF REVISION OF RETURN OF INCOME. IN VIEW OF THE ABOVE THE CLAIM OF THE APPELLANT RAI SED IN GR.NO.2 STANDS REJECTED. FROM THE AFORESAID DECISION OF THE LD.CIT(A), IT I S CLEAR THAT THE LD.CIT(A) HAS REJECTED THE ASSESSEES CLAIM ON PRELIMINARY G ROUND THAT BEFORE THE A.O., THE ASSESSEE IS NOT EMPOWERED TO MAKE A NEW CLAIM, WHICH WAS NOT MADE IN THE ORIGINAL RETURN OF INCOME, AND O NLY RECOURSE OPEN TO 4 THE ASSESSEE WAS TO REVISE ITS RETURN OF INCOME FO R MAKING SUCH A CLAIM. THE LD.CIT(A) HAS ALSO TAKEN A VIEW THAT THE FIRST APPELLATE AUTHORITY ALSO CAN NOT ENTERTAIN THE NEW CLAIM MADE BY THE AS SESSEE, WHICH WAS NOT MADE BY WAY OF FILING A REVISED RETURN OF INCOM E. 4. IN THE LIGHT OF THE VIEW TAKEN BY THE LD.CIT(A), THE CONTROVERSY THAT ARISES FOR OUR CONSIDERATION IS AS TO WHETHER THE L D.CIT(A) WAS JUSTIFIED IN REJECTING THE ASSESSEES CLAIM IN LIMINE BY OBSE RVING THAT EVEN THE FIRST APPELLATE AUTHORITY CAN NOT ENTERTAIN THE NE W CLAIM MADE BY THE ASSESSEE, WHICH WAS NOT MADE BY WAY OF FILING REVI SED RETURN. IN THIS CONNECTION, THE LD.CIT(A) HAS RELIED UPON THE DECIS ION OF HONBLE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. VS CI T (SUPRA). IT IS THEREFORE, DESIRABLE ON OUR PART TO HAVE A LOOK TO THE PROPOSITION OR THE RATIO LAID DOWN BY HONBLE SUPREME COURT IN THE CAS E OF GOETZ INDIA LTD. (SUPRA). 5. IN THE CASE OF GEOTZ INDIA LTD. VS CIT THE HONB LE SUPRME COURT HAS RENDERED THE DECISION AS UNDER. LEAVE GRANTED. THE QUESTION RAISED IN THIS APPEAL RELATES TO WHETH ER THE APPELLANT ASSESSEE COULD MAKE A CLAIM FOR DEDUCTION OTHER THAN BY FILING A REVISED RETURN. THE A.Y. IN QUEST ION WAS 1995-96. THE RETURN WAS FILED ON NOVEMBER 30,1995, BY THE 5 APPELLANT FOR THE A.Y. IN QUESTION. ON JANUARY 12, 1998, THE APPELLANT SOUGHT TO CLAIM A DEDUCTION BY WAY OF LET TER BEFORE THE A.O. THE DEDUCTION WAS DISALLOWED BY THE AO ON THE GROUND THAT THERE WAS NO PROVISION UNDER THE INCOME TAX ACT TO MAKE AMENDMENT IN THE RETURN OF INCOME BY MODIFY ING AN APPLICATION AT THE ASSESSMENT STAGE WITHOUT REVISIN G THE RETURN. THIS APPELLANTS APPEAL BEFORE THE CIT(A) WAS ALLOW ED. HOWEVER, THE ORDER OF THE FURTHER APPEAL OF THE DEP ARTMENT BEFORE THE ITAT WAS ALLOWED. THE APPELLANT HAS APP ROACHED THIS COURT AND HAS SUBMITTED THAT THE TRIBUNAL WAS WRONG IN UPHOLDING THE AOS ORDER. HE HAS RELIED UPON THE D ECISION OF THIS COURT IN NTPC LTD. VS CIT (1998) 229 ITR 383, TO CONTEND THAT IT WAS OPEN TO THE ASSESSEE TO RAISE THE POINT S OF LAW EVEN BEFORE THE APPELLATE TRIBUNAL. THE DECISION IN QUESTION IS THAT THE POWER OF THE T RIBUNAL U/S 254 OF THE ACT IS TO ENTERTAIN FOR THE FIRST TIME A POINT OF LAW PROVIDED THE FACT ON THE BASIS OF WHICH THE ISSUE O F LAW CAN BE RAISED BEFORE THE TRIBUNAL. THE DECISION DOES NOT IN ANY WAY RELATE TO THE POWER OF THE AO TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RETURN . IN THE CIRCUMSTANCES OF THE CASE, WE DISMISS THE CIVIL APP EAL. HOWEVER, WE MAKE IT CLEAR THAT THE ISSUE IN THIS CA SE IS LIMITED 6 TO THE POWER OF THE ASSESSING AUTHORITY AND DOES NO T IMPINGE ON THE POWER OF THE ITAT U/S 254 OF THE I.T.ACT, 19 61. THERE SHALL BE NO ORDER AS TO COSTS. 6. IN THE SAID DECISION, THE HONBLE SUPREME COURT MADE IT CLEAR THAT ISSUE IN GEOTZES INDIA(SUPRA) CASE WAS RESTRICTED TO THE POWER OF ASSESSING AUTHORITY TO ENTERTAIN A CLAIM FOR DEDUCT ION OTHERWISE THAN BY A REVISED RETURN, AND DID NOT IMPINGE ON THE POWER OF APPELLATE TRIBUNAL U/S 254 OF THE ACT. THE S.C. HAS REFERRED TO ITS DECISION IN THE CASE OF NTPC LTD. VS CIT 229 ITR 383 (SC) AND HAS CONCURRED WITH THAT JUDGEMENT THAT IT WAS OPEN TO THE ASSESEE TO RAISE POINTS OF LAW BEFORE THE TRIBUNAL. FROM THE SAID DECISION OF HONBLE SUPRME COURT IN T HE CASE OF GOETZ INDIA LTD., IT IS CLEAR THAT THE HONBLE SUP RME COURT HAS MADE IT CLEAR THAT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO.LTD. VS CIT (1998) 229 ITR 383 DOE S NOT IN ANY WAY RELATE TO THE POWER OF THE A.O. TO ENTERTAIN A CLAI M FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RETURN. THIS MA KES IT CLEAR THAT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GO ETZ INDIA LTD. VS CIT IS CONFINED ONLY TO THE POWER OF THE A.O. TO ENTE RTAIN A NEW CLAIM FOR DEDUCTION OTHERWISE THAN BY A REVISED RETURN AND IT DID NOT IMPINGE ON THE POWER OF THE APPELLATE TRIBUNAL U/S 254 OF THE ACT. 7 7. THE POWER OF APPELLATE AUTHORITY TO ENTERTAIN A NEW CLAIM HAS BEEN ANALYSED IN THE CASE OF NATIONAL THERMAL POWER CO.L TD., VS CIT(SUPRA), WHERE THE HONBLE SUPREME COURT HAS OBSERVED AND HE LD AS UNDER. U/S 254 OF THE INCOME TAX ACT, THE APPELLATE TRIB UNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREO N AS IT THINKS FIT. THE POWER OF THE TRIBUNAL IN DEALING W ITH APPEALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TE RMS. THE PURPOSE OF THE ASSESSMENT PROCEEDINGS BEFORE TH E TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAX L IABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. IF, FOR EXAMPL E, AS A RESULT OF A JUDICIAL DECISION GIVEN WHILE THE APPEA L IS PENDING BEFORE THE TRIBUNAL, IT IS FOUND THAT A NON TAXABLE ITEM IS TAXED OR A PERMISSIBLE DEDUCTION IS DENIED, WE DO NOT SEE ANY REASON WHY THE ASSESSEE SHOULD BE PREVE NTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THAT ITEM. WE DO NOT SEE ANY REASON TO RESTRICT THE POWER OF THE TRIBUNAL U/S 254 ONLY TO DECIDE THE GR OUNDS WHICH ARISE FROM THE ORDER OF THE CIT(A). BOTH THE ASSESEE AS WELL AS THE DEPARTMENT HAVE A RIGHT TO FILE AN APPEAL/CROSS OBJECTIONS BEFORE THE TRIBUNAL. WE F AIL TO SEE WHY THE TRIBUNAL SHOULD BE PREVENTED FROM CONSIDERI NG 8 QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS ALTHOUGH NOT RAISED EARLIER. IN THE CASE OF JUTE CORPORATION OF INDIA LTD. VS CI T (1991) 187 ITR 688, THIS COURT, WHILE DEALING WITH THE POW ERS OF THE APPELLATE ASSISTANT COMMISSIONER OBSERVED THAT AN APPELLATE AUTHORITY HAS ALL THE POWERS WHICH THE O RIGINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATIONS, IF ANY, PRESCRIBED BY THE STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTORY PROVISION, THE APPELLATE AUTHORITY IS VES TED WITH ALL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHOR ITY MAY HAVE IN THE MATTER. THERE IS NO GOOD REASON TO JUSTIFY CURTAILMENT OF THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IN SEEKING MODIFICATION OF THE ORDER OF ASSESSMENT PASSED BY THE ITO. THIS COURT FURTHER OBSERVED THAT THERE MAY BE SEVERAL FACTORS JUSTIFYI NG THE RAISING OF A NEW PLEA IN AN APPEAL AND EACH CASE HA S TO BE CONSIDERED ON ITS OWN FACTS. THE APPELLATE ACIT MU ST BE SATISFIED THAT THE GROUND RAISED WAS BONA FIDE AND THAT THE SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD RE ASONS. THE APPELLATE ACIT SHOULD EXERCISE HIS DISCRETION I N PERMITTING OR NOT PERMITTING THE ASSESSEE TO RAISE AN ADDITIONAL GROUND IN ACCORDANCE WITH LAW AND REASON . THE 9 SAME OBSERVATIONS WOULD APPLY TO APPEALS BEFORE THE TRIBUNAL ALSO. THE VIEW THAT THE TRIBUNAL IS CONFINED ONLY TO ISSU ES ARISING OUT OF THE APPEAL BEFORE THE CIT(A) TAKES T OO NARROW A VIEW OF THE POWERS OF THE APPELLATE TRIBUNAL (VID E, E.G. CIT VS ANAND PRASAD (1981) 128 ITR 388 (DELHI), CIT VS KARAMCHAND PREMCHAND P.LTD. (1969) 74 ITR 254 (GUJ .) AND CIT VS CELLULOSE PRODUCTS OF INDIA LTD. (1985) 151 ITR 499 (GUJ) (FB). UNDOUBTEDLY, THE TRIBUNAL WILL HAV E THE DISCRETION TO ALLOW OR NOT ALLOW A NEW GROUND TO BE RAISED. BUT WHERE THE TRIBUNAL IS ONLY REQUIRED TO CONSIDER A QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS WE FAIL TO SEE WHY SU CH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO COR RECTLY ASSESS THE TAX LIABILITY OF AN ASSESEE. THE REFRAMED QUESTION, THEREFORE, IS ANSWERED IN TH E AFFIRMATIVE, I.E. THE TRIBUNAL HAS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISES FROM THE FACTS AS FOUN D BY THE AUTHORITIES BELOW AND HAVING A BEARING ON THE TAX L IABILITY OF THE ASSESSEE. WE REMAND THE PROCEEDINGS TO THE TRIBUNAL FOR CONSIDERATION OF THE NEW GROUNDS RAISE D BY THE ASSESEE ON THE MERITS. 10 8. AT THIS STAGE, THE QUESTION ARISES AS TO WHETH ER THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GOETZ INDIA LT D. VS CIT IMPINGE ON THE POWER OF THE FIRST APPELLATE AUTHORITY U/S 251 OF THE ACT. THE LD.CIT(A, ) IN THE PRESENT CASE, HAS TAKEN A VIEW T HAT THIS DECISION IS ALSO APPLICABLE TO THE POWER OF THE FIRST APPELLATE AUTH ORITY IN AS MUCH AS THE POWER OF THE FIRST APPELLATE AUTHORITY ARE COTERMIN US WITH THAT OF THE A.O. IN THE LIGHT OF THE POWERS CONFERRED ON THE FIRST APPELLATE AUTHORITY U/S 251 OF THE ACT, WE DO NOT FIND OURSELVES IN AGREEME NT WITH THE LD.CIT(A) IN SO FAR AS HIS VIEW THAT DECISION OF HONBLE SUPR EME COURT IN THE CASE OF GOETZ INDIA LTD. VS CIT HOLDING THAT THE ASSESSI NG AUTHORITY CAN NOT ENTERTAIN A NEW CLAIM FOR DEDUCTION OTHERWISE THAN BY A REVISED RETURN IS ALSO APPLICABLE WITH REGARD TO THE POWER OF THE FIRST APPELLATE AUTHORITY IN ENTERTAINING A NEW CLAIM OTHERWISE THAN BY FILIN G A REVISED RETURN. S. 251 OF THE ACT PROVIDES THAT IN DISPOSING OF AN APP EAL THE FIRST APPELLATE AUTHORITY SHALL HAVE THE POWERS, IN AN APPEAL AGAIN ST ORDER OF AN ASSESSMENT, TO CONFIRM, REDUCE, ENHANCE OR ANNUL TH E ASSESSMENT. IN OTHER WORDS THE FIRST APPELLATE AUTHORITY HAS WIDE POWERS TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT IN THE CASE S WHERE APPEAL IS FILED AGAINST THE ORDER OF AN ASSESSMENT. THE CIT( A) HAS THUS BEEN GIVEN A POWER OF REDUCING AS WELL AS ENHANCING THE ASSES SMENT. EXPLANATION TO S. 251 OF THE ACT STATES THAT IN DISPOSING OF AN APPEAL, THE FIRST APPELLATE AUTHORITY MAY CONSIDER AND DECIDE ANY MAT TER ARISING OUT OF THE PROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, 11 NOTWITHSTANDING THAT SUCH MATTER WAS NOT RAISED BEF ORE IT BY THE APPELLANT. THIS MAKES IT CLEAR THAT THE FIRST APPE LLATE AUTHORITY HAS PLENARY POWERS IN DISPOSING OF AN APPEAL. HE HAS POWER TO REDUCE, AND ENHANCE THE ASSESSMENT AND EVEN IF SOME ITEM OF IN COME ARISING OUT OF THE PROCEEDINGS OF THE ASSESSMENT MAY BE CONSIDER ED BY HIM EVEN IF THE SAME WAS NOT CONSIDERED BY THE A.O. THEREFORE TH E LD.CIT(A)S OBSERVATION THAT SCOPE OF HIS POWER ARE LIMITED TO THAT OF THE A.O. IN ENTERTAINING A NEW CLAIM IS MISCONCEIVED. IN THE CA SE OF NATIONAL THERMAL POWER CO.LTD. VS CIT, THE DECISION OF HONB LE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA LTD. VS CIT ( 1991) 187 ITR 688 WAS REFERRED TO AND IN THAT DECISION, WHILE DEALING WIT H THE POWERS OF THE APPELLATE ASSISTANT COMMISSIONER, THE HONBLE SUP REME COURT OBSERVED THAT THERE IS NO GOOD REASON TO JUSTIFY CURTAILMEN T OF THE POWERS OF THE APPELLATE ASSISTANT COMMISSIONER IN ENTERTAINING AN ADDITIONAL GROUND RAISED BY THE ASSESSEE IN SEEKING MODIFICATION OF T HE ORDER OF ASSESSMENT PASSED BY THE INCOME TAX OFFICER. 9. EVEN OTHERWISE, THERE IS NO RESTRICTION ON THE POWER OF THE TRIBUNAL TO ENTERTAIN A NEW CLAIM RAISED BY THE ASS ESSEE IN THE LIGHT OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF NTPC LTD. VS CIT. THIS HAS BEEN MADE CLARIFIED BY THE HONBLE SUPREME COURT IN THE CASE OF GEOTZ INDIA LTD. BY OBSERVING THAT THE DECI SION IN THIS CASE DO NOT IMPINGE ON THE POWERS OF THE APPELLATE TRIBUNAL U/S 254 OF THE ACT TO 12 ENTERTAIN A NEW CLAIM OTHERWISE THAN BY REVISED RET URN. IN THE CASE OF NTPC LTD. (SUPRA), IT HAS BEEN HELD THAT THE TRIBUN AL SHOULD NOT BE PREVENTED FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS, ALTHOUGH NOT RAISED EARLIER AND THE VI EW THAT THE TRIBUNAL IS CONFINED ONLY TO THE ISSUES ARISING OUT OF THE APPE ALS BEFORE THE FIRST APPELLATE AUTHORITY IS TOO NARROW A VIEW TO TAKE OF THE POWERS OF THE TRIBUNAL. THEREFORE FROM THAT ANGLE, THE ASSESSEE S CLAIM THAT THE GRANT RECEIVED BY THE ASSESEE FROM HOLDING CO. IS NOT LIA BLE TO BE INCLUDED IN INCOME CHARGEABLE TO TAX UNDER THE ACT CAN EVEN BE ENTERTAINED AT THIS STAGE OF APPEAL BEFORE THE TRIBUNAL PARTICULARLY I N VIEW OF THE FACT THAT ALL THE FACTS RELATING TO THIS CLAIM ARE AVAILABLE ON RECORD AS WOULD BE CLEAR FROM THE AOS ORDER WHERE THE AO HAS ALSO DEC IDED THE ISSUE ON ITS MERIT BY TAKING A VIEW THAT THE GRANT RECEIVED BY T HE ASSESSEE FROM HOLDING CO. IS OF REVENUE IN NATURE. WE, THEREFOR E, ENTERTAIN THE CLAIM OF THE ASSESSEE FOR CONSIDERATION. HOWEVER SINCE T HE FIRST APPELLATE AUTHORITY HAS NOT DECIDED THIS ISSUE ON ITS MERIT A S TO WHETHER THE GRANT RECEIVED BY THE ASSESEE IS TO BE REGARDED AS OF C APITAL IN NATURE OR REVENUE, WE FIND IT FIT TO RESTORE THE MATTER TO TH E FILE OF THE LDCIT(A) FOR HIS DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS TO THE A.O. THE LD.CIT(A) SHAL L DECIDE THE ISSUE WHETHER THE GRANT RECEIVED BY THE ASSESSEE FROM ITS HOLDING COMPANY, IN THE FACTS OF THE ASSESSEES CASE, IS LIABLE TO BE INCLUDED IN THE INCOME TO BE TAXED UNDER THE ACT. THE ASSESSEE SHALL SUBMIT ALL NECESSARY DETAILS, 13 INFORMATION AND EVIDENCES BEFORE THE LD.CIT(A) IN O RDER TO ENABLE THE LDCIT(A) TO EXAMINE THE ISSUE PROPERLY AND IN ITS R IGHT AND CORRECT PERSPECTIVE. THE LD.CIT(A) SHALL ALSO OBTAIN A NEC ESSARY COMMENT FROM THE A.O. IN RESPECT OF ANY NEW EVIDENCES OR PARTICU LARS THAT MAY BE FURNISHED BY THE ASSESEE BEFORE THE LD.CIT(A). WE ORDER ACCORDINGLY. 10. SINCE THE MATTER HAS REMITTED BACK TO THE FILE OF THE LD.CIT(A) FOR HIS DECISION ON MERIT, OTHER GROUNDS OF APPEAL RAIS ED BY THE ASSESEE ON THE MATTER HAVE BECOME REDUNDANT AT THIS STAGE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AS INDICATED ABOVE. THIS DECISION WAS PRONOUNCED IMMEDIATELY AFTER CO NCLUSION OF THE HEARING ON 10.6.2010. (A.K.GARODIA) (C.L.SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: JUNE, 2010 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A ); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR // C O P Y //