ASIAN TECHS LTD. VS INCOME TAX APPELLATE TRIBUNAL
2000 P T D 3234
[237 I T R 348]
[Kerala High Court (India)]
Before P: Shanmugam, J
ASIAN TECHS LTD.
Versus
INCOME-TAX APPELLATE TRIBUNAL and another
O.P. No.24873 of 1998-J, decided on 17/12/1998.
Income-tax--
----Appeal to Appellate Tribunal---Procedure---Raising of additional grounds of, appeal---Applicant must ensure that application for raising additional grounds is registered and that it is heard either earlier or alongwith appeal-- Applicant waiting from 1992 to 1998 without getting it registered or disposed of---Tribunal was justified in refusing to consider additional grounds of appeal---Indian Income-tax Appellate Tribunal Rules, 1963, R.11.
An applicant has to seek leave of the Tribunal to raise an additional ground under rule 11 of the Income-tax Appellate Tribunal Rules, 1963. When an additional ground is legally raised, the Tribunal is duty bound to render a decision on that. But the assessee has to show that the miscellaneous petition was filed, registered and it was pending for admission and such a ground has not been decided by the Tribunal. When the assessee makes an application, it is necessary for him to get it registered and see that the same is heard either earlier or alongwith the appeal:
Held, dismissing the writ petition, that the application of the petitioner filed to raise additional grounds had not been registered. The Tribunal had not granted leave as required. The said application was not before the Tribunal at the time of the disposal of the appeal. That apart, the petitioner had not taken due care, if really the petitioner had filed it, to get it registered and posted, from the years 1992 to 1998. Hence, the Tribunal was justified in dismissing the miscellaneous petition.
Joseph Markos and Joseph Kodianthara for Petitioner.
P.K.R. Menon for Respondent.
JUDGMENT
The petitioner is an assessee under the Income Tax Act, 1961, carrying on business as engineers and contractors. They have filed this original petition to quash Exh.P.5 order of the Income-tax Appellate Tribunal dismissing the miscellaneous petition (M.P. No.60 (Coch) of 1998).
The brief facts necessary for the disposal of the original petition are as follows: Assessment of the petitioner was made on March 26, 1991. The first appellate order was passed on March 18, 1992. Thereafter, the petitioner has preferred second appeal before the Appellate Tribunal. According to the petitioner, he has preferred Exh. P-2 miscellaneous petition, dated November 28, 1992, under rules 11 and 29 of the Income-tax Appellate Tribunal Rules, 1963. The Tribunal passed final orders on April 3, 1998 Exh. P-3. Thereafter, the petitioner filed M. P. No.60 of 1998 on June 10, 1998, seeking to recall the order, dated April 3, 1998, and rectify the mistake apparent therein by considering the grounds raised in their miscellaneous petition Exh. P-2. The said application is rejected. The original petition is against that order.
The Tribunal found that the miscellaneous petition said to have been filed in the year 1992 was not registered and was not before them when the final hearing of the appeal took place. It is not in dispute that the petitioner has to seek leave of the Tribunal to raise an additional ground under rule 11 of the Appellate Tribunal Rules. Therefore, the petitioner should have been diligent enough in getting that application numbered and should have obtained leave before the appeal was heard in the year 1998. On the contrary, it is found, as a matter of fact, by the Tribunal as follows:
"We have gone through the entire proceedings of I.T.A. No. 199/ (Coch) of 1992 relating to the assessment year 1988-89 and we did not find any miscellaneous petition, dated December 1, 1992, alleged to have been filed by the assessee and posted for hearing."
It is further stated that even the miscellaneous petition Exh. P-4 filed to review the order does not state what the additional ground was. The Tribunal was alive to the settled legal position that when an additional ground is legally raised, the Tribunal is duty bound to render a decision on that. But the assessee has to show that the miscellaneous petition was filed, registered and it was pending for admission of the additional ground and such ground has not been decided by the Tribunal. When the assessee made an application, it is necessary for him to get it registered and see that the same is heard either earlier or alongwith the appeal. It is further seen that the assessee did not raise any such additional ground either before the Assessing Officer or before the Commissioner of Income-tax (Appeals). The Tribunal also found no reason as to why the assessee waited from December 1, 1992 .to March 24, 1998, without pursuing the alleged miscellaneous petition and without getting it disposed of. I do not find any error in the findings and the conclusion of the Tribunal. As found by the Tribunal, the application of the petitioner filed to raise additional ground has not been registered. The Tribunal has not granted leave as required. The said application was not before the Tribunal at the time of the disposal of the appeal. That apart, the petitioner has not taken due care, if really the petitioner has filed it to get it registered and posted, from the years 1992 to 1998.
For all these reasons, I do not find any illegality in the order passed. by the Tribunal. Hence, the original petition fails and it is accordingly dismissed.
M.B.A./20/FC
Petition dismissed.