Avery Cycle Industries Ltd. Vs. Cit

head note: income tax act, 1961 . appeal [tribunal]--additional groundrelevant facts were before tribunal on record--the tribunal denied the assessee to raise an additional ground of appeal with regard to computation of correct depreciation and consequential taxable income. held: not rightly so. where there was no doubt that all the facts relevant to the additional ground seeking depreciation allowance are on record. the tribunal is only to decide the claim of depreciation made by the assessee as per the it act, 1961. the additional ground could be raised by the assessee in appeal before the tribunal under rule 11 of the appellate tribunal rules, 1963. the impugned order passed by the tribunal, therefore, set aside and the tribunal is directed to deal with the aforementioned additional ground in accordance with law. the revenue cannot successfully dispute the fact that an additional ground can always be raised under section 2.54 before the tribunal if it involves a question of law, which emerges from facts on record in the assessment proceedings, although the same might not have been raised before the cit(a). [para 2]there was no doubt that all the facts relevant to the additional ground seeking depreciation allowance are on record. the tribunal is only to decide the claim of depreciation made by the assessee as per the it act, 1961. the additional ground could be raised by the assessee in appeal before the tribunal under rule 11 of the appellate tribunal rules, 1963. the impugned order passed by the tribunal, therefore, set aside and the tribunal is directed to deal with the aforementioned additional ground in accordance with law. [para 3] income tax act, 1961 section 254 income tax appellate tribunal rules, 1963 rule 11 - - but where the tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceeding we fail to see why such a question should not be allowed to be raised when it is necessary to..........consequential taxable income.2. notice of the appeal was issued and with the consent of the parties the appeal is taken up for final hearing.3. after hearing learned counsel for the parties, we find that the revenue cannot successfully dispute the fact that an additional ground can always be raised under section 254 of the income tax act, 1961, before the tribunal if it involves a question of law, which emerges from facts on record in the assessment proceedings, although the same might not have been raised before the commissioner (appeals). the matters appear to be concluded against the revenue by the judgment of the hon'ble the supreme court in the case of national thermal power co. ltd. v. cit : [1998]229itr383(sc) . the view of the hon'ble the supreme court emerges from the concluding part of the last but one paragraph of the judgment, which reads as under (page 387) :undoubtedly, the tribunal will have 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 proceeding we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee.4. when the facts raised in the instant appeal are examined in the light of the principle laid down by the hon'ble supreme court, then no doubt it felt that all the facts relevant to the additional ground seeking depreciation allowance are on record. the tribunal is only to decide the claim of depreciation made by the assessee as per the income tax act, 1961. the additional ground could be raised by the assessee in appeal before the tribunal under rule 11 of the appellate tribunal rules, 1963. in the present case, the following additional ground has been raised, as is evident from the perusal of the additional ground of appeal, dated 9-4-2004 (annexure a-6):that the w.d.v. of the.....