High Court has no Power to entertain grounds not raised before tribunal

C& C Construction Pvt Ltd vs. CIT (Delhi High Court)- Clause (a) of sub-Section (6) to Section 260A of the Act states that the High Court may decide an issue, which is not determined by the Appellate Tribunal. The word “determined” means that the issue is not dealt with, though it was raised before the Tribunal. The word “determined” presupposes an issue was raised or argued but there is failure of the Tribunal to decide or adjudicated the same. In a given case, a substantial question of law may arise because of the facts and findings recorded by the Tribunal, but the said issue/question is not determined. In such cases, an appeal under Section 260A of the Act can be entertained.

HIGH COURT OF DELHI

ITA No. 1118/2011

Decided on : 25^th November, 2011.

C& C CONSTRUCTION PVT. LTD.

versus

COMMISSIONER OF INCOME TAX

ORDER

SANJIV KHANNA, J. (ORAL)  :

This appeal under Section 260A of the Income Tax Act, 1961 (‘Act^‘ for short) impugns the order dated 26.6.2009 passed by the Income Tax Tribunal (^„Tribunal^‟ for short) in ITA No. 4000/Del/2007. The appeal relates to the assessment year 2003-04.

2. The findings of the authorities/tribunal and the reasoning portion of the impugned order is reproduced as under :

“2. With regard to ground No.1, the assessee claimed 100% depreciation amounting to Rs.41 ,37,577/-. The AO, however, allowed depreciation on sheds @ only 10%, treating the construction as construction of office building. The assessee had submitted that the sheds were of temporary nature and were necessary for carrying out efficient business for earning of profits; that after the project is over, the sheds are handed over to the contractee.  The AO rejected this plea of the assessee since the assessee had not shown any income from anysuch transfer to its contractee. It was observed that Rs.20,26,181/- had been incurred at the Koklata Regional Office-I of the assessee, whereas sums of Rs.10,75,297/- and Rs.10,14,599/- had been incurred at two other different sites. It was from this that the AO concluded that the expenses had been incurred on construction of the office building. Depreciation was allowed @10% and not @100% as claimed by the assessee, keeping in view the scale of the expenditure, the past history and the above conclusion that the expenditure was on construction of office building. The ld. CIT(A) upheld the AO^‟s order with regard to allowing depreciation @ 10% concerning the construction at the assessee^‟s Kolkata Regional Office-1. However, it was found by the ld. CIT(A) that the    other two expenses of  Rs.10,75,297/- and Rs. 10,14,599/- (total amounted to Rs.2,08,98,967/- pertained to two other projects, namely, GSB-WMM Project and Panogarh Palsit, where the construction was of temporary sheds. The AO was directed to allow depreciation @ 100% on these two sites.