Law: Income Tax Act, 1922

Section: 35

Constitution of India--Article 226-High Court--Writ-Ground not raised before Appellate Tribunal-Application for review to consider ground-Dismissal by Tribunal-High Court whether could set aside order of dismissal and direct Tribunal to consider application for review-Held no. In assessing the assessee to excess profits tax for the chargeable accounting periods ending March 11, 1945, and March 31, 1946, the Excess Tax Officer did not make any adjustment of standard profits for variations in the average capital as the assessee had not maintained complete and regular accounts. Though the assessee had preferred appeals, the ground based on adjustment of standard profits for variation in capital was raised only in an additional application claiming that the assessee was always prepared to tile the computations of average capital, The Appellate Assistant Commissioner also rejected the claim. The assessee preferred further appeals to the Appellate Tribunal specifically raising this ground but the Tribunal did not discuss it in its common order dated February 24, 1951. On July 27. 1951, the assessee applied for rectification but made no grievance based on that ground relating to adjustment of standard profits for variation in capital. In the applications to the High Court for directing a reference the assessee did not raise any question relating to that ground. In a representation made to the Board in March, 1954 the assessee did not advert to this ground. Thereafter, on April 3, 1956, the assessee made a second application to the Tribunal contending that the ground raised in its memorandum of appeal had not been disposed of and the appeals should he deemed to be pending. The Tribunal by an order dated June 9, 1956 dismissed the review application and refused to treat it as one for rectification because such an application would be time-barred. During the proceedings for preparation of the statement of the case called for by the High Court the assessee applied on July 23, 1937, requesting the Tribunal to refer the question of adjustment of standard profits but the Tribunal rejected it because neither had the question been raised in the reference application nor did it…

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