Madras H.C : All that the Tribunal has done is to provide relief which was consequential and flowed from its own finding in the appeal

Counsel Appeared

Mrs. Chitra Venkataraman, for the Revenue : R. Kumar, for the Respondent

JUDGMENT

R. JAYASIMHA BABU, J. :

All that the Tribunal has done is to provide relief which was consequential and flowed from its own finding in the appeal. The fact that such relief was provided does not in any way make that order of the Tribunal defective.

2. The Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT (1999) 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC) : TC S8.964 has held that it is open to the Tribunal to allow a new ground to be raised even if such ground had not been raised in the proceedings before the authorities below that of the Tribunal, in order to correctly assess the tax liability of the assessee, provided the facts required for deciding the question raised are available in the assessment proceedings. There is no dispute that all the facts required for granting the consequential relief were part of the record of the assessment proceedings. The Tribunal in its elaborate order rightly referred to the earlier decision of the Supreme Court in the case of Shivdeo Singh vs. State of Punjab, AIR 1963 SC 1909 and in the case of CIT vs. Mahalahshmi Textile Mills Ltd. (1967) 66 ITR 710 (SC) : TC 15R.289, 8R.1015 while holding that the Tribunal had primary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it and further that the Tribunal is duty bound to grant relief to which the assessee is entitled even though there was no plea in that regard. The Tribunal has also rightly pointed out that while the Revenue can resort to s. 147 r/w s. 153(3) to review the assessment and assess the escaped income, there is no corresponding provision requiring the Revenue to amend the assessment and to grant consequential relief on the basis of the findings given in the appeal.

The Tribunal in this case has found that the investment made by the assessee was out of the borrowed capital and, therefore, interest on such capital could not be deducted while computing the income from the business. In the miscellaneous petition, it has been rightly held that such interest is to be taken into account while computing the income from other sources. The assessment years are 1972-73, 1973-74 and 1974-75. Tax Case M.Ps. Nos. 50 to 53 of 1999 are ordered.

[Citation : 252 ITR 653]