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Income Tax Appellate Tribunal, ‘C’ BENCH : CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI CHANDRA POOJARI]
आदेश / O R D E R
PER CHANDRA POOJARI, ACCOUNTANT MEMBER
This appeal by the assessee is directed against the order of the Commissioner of Income-tax (Appeals)-3, dated 30.12.2016 for the assessment year 2011-2012.
ITA No. 891/Mds/2017. :- 2 -:
The assessee has raised the following grounds of appeal:-
‘’1. The Honourable CIT/Assessing Officer erred in not appreciating the law relating to section 145A and without appreciating the principle that the Appellant is eligible for MODVAT credit on the purchases.
2. The Appellant craves leave to add or alter, by deletion, substitution, modification or otherwise, the above grounds of appeal either before or during the hearing of the appeal.
Before ld. Commissioner of Income Tax (Appeals) assessee 3. raised a ground that ld. Assessing Officer erred in doing disallowance under section 145A of the Act and this ground was not pressed before the ld. Commissioner of Income Tax (Appeals). Accordingly, ld. Commissioner of Income Tax (Appeals) dismissed the ground has not pressed.
Now before us, ld. Authorised Representative submitted that assessee wanted to press this ground since it is a legal issue and prayed to remit the issue back to the file of the ld. Assessing Officer for fresh consideration.
On the other hand, ld. Departmental Representative vehemently opposed to the submissions of the ld. Authorised Representative.
ITA No. 891/Mds/2017. :- 3 -:
We have heard both the parties and perused the material on record. In our opinion assessee not explained the reason why it has not pressed the ground before the ld. Commissioner of Income Tax (Appeals) and why assessee wanted to press this ground before us.
Assessee has also not explained whether it is a mistake of facts or law in not pressing this ground before the ld. Commissioner of Income Tax (Appeals). The Hon’ble Jurisdictional High Court in the case of Ramanlal Kamdar vs. CIT 108 ITR 73 had held that once the assessee has accepted that there was no objection to the assessment order, he cannot be said to be aggrieved by that order and cannot appeal against before Appellate Authority. Further, Hon’ble Gauhati High Court in the case of Lalsingh Estate Pvt. Ltd vs. CIT 216 ITR 644 had also held that a person cannot say at one time that a transaction is valid and turnaround and say it is void so as to obtain some advantage. This being the situation, we cannot validate the ground taken by the assessee. Further, we make it clear that we are not saying that assessee has not having a right of appeal. Admittedly, assessee is having right of appeal on the condition that assessee has to explain with good and sufficient reason for not pursuing this ground on earlier occasion before the ld. Commissioner of Income Tax (Appeals). However, in the present case, there is no iota of explanation by the assessee for not pressing this ground before ld.
ITA No. 891/Mds/2017. :- 4 -:
Commissioner of Income Tax (Appeals). In such circumstances, we are not in a position to appreciate the ground raised by the assessee before us. Accordingly, this ground of the assessee is dismissed.
In the result, the appeal of the assessee is dismissed.
Order pronounced on Monday, the 19th day of June, 2017, at Chennai.