IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.01.2008 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN AND THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN T.C.NO.37 OF 2008 (Appeal.37/2008) Commissioner of Income Tax Chennai ... Appellant Vs. Southern Group Idnustries Limited Raja Annamalai Building 19, Marshalls Road, Chennai – 8. ... Respondent For Appellant: Mr.J.Narayanaswamy Tax Case Appeal filed under Section 260-A of the Income-tax Act against 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 for the assessment year 1997-98 against the order dated 18.10.2000 in ITA.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 on the 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 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 for the assessment year 1997-98 formulating the following question of law: "1. Whether in the facts and circumstances of the case, the Tribunal was right in dismissing the Misc.Petition filed by the revenue wherein it was pleaded that the additional ground was not considered by the Tribunal while disposing the appeal? https://hcservices.ecourts.gov.in/hcservices/ 2. The miscellaneous petition in M.P.No.271/Mds/06 in I.T.A.No.156/Mds./01 came to be filed by the revenue in the following circumstances: The assessing officer while passing the assessment order for the assessment year 1997-98 inter alia restricted the deduction under Section 80IA to the business income and excluded the income from other sources. Aggrieved by the assessment order, the assessee filed appeal before the Commissioner of Income-tax (Appeals), who allowed the said issue 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, the issue relating to Section 80IA was not raised. It is the case of the revenue that during the pendency of the appeal before the Tribunal, additional ground contesting the allowance of deduction under Section 80IA was filed. Despite raising of additional grounds, that has not been considered by the Tribunal while passing the order on 20.8.2003. On that basis, the M.P. has been filed. The Tribunal after perusing the appeal folder has recorded a factual finding that no such additional ground has been raised and received by the Tribunal and as such the petition filed by the revenue that the additional ground in respect of the issue relating to Section 80IA was not considered was not correct when no such ground was in fact raised. 4. Learned counsel for the revenue submits that it is a fact that the assessing officer has raised such additional ground and that has been received by the authorised representative. He further admits that it is also true that in the appeal folder on the file of the Income-tax Appellate Tribunal, the additional ground raised is not available. In those circumstances he sought for liberty to file appeal by raising that ground. 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 the order passed by the Tribunal in M.P.No.271/Mds/06 in I.T.A.No.156/Mds./01 dated 31.7.2007. When it is admitted that the appeal folder did not contain the additional ground, necessarily the M.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 to the allowability of Section 80IA under the statute, it is well open to the revenue to do so, if they so advised. https://hcservices.ecourts.gov.in/hcservices/ With this observation, the appeal is dismissed as no question of law is involved. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk Copy to: 1. The Assistant Registrar, The Income-tax Appellate Tribunal Madras 'C' Bench, Rajaji Bhavan, Chennai. 2. The Commissioner of Income-tax Appeal (V), Chennai – 600 034. 3.The Joint commissioner of Income-tax Special Range VI, Chennai – 600 034. 4. The Income-tax Officer Company 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 2008 VC(CO) RVL 08.02.2008 https://hcservices.ecourts.gov.in/hcservices/