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C& C Construction Pvt Ltd vs. CIT (Delhi High Court)
December, 02nd 2011

260A: High Court has no power to consider issue not raised before Tribunal


The assessee filed an appeal before the Tribunal in which it argued that it had constructed a temporary construction which was eligible for 100% depreciation. This was rejected by the Tribunal on the basis that the construction was permanent. Before the High Court, the assessee argued for the first time that the expenditure was revenue in nature and admissible as business expenditure. HELD not permitting the assessee to raise the plea:


A contention/ issue, which is not raised, dealt with or answered by the Tribunal, cannot be raised before the High Court for the first time in an appeal u/s 260A. Though s. 260A(6) empowers the High Court to determine any issue which has not been 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. However,as the issue whether the expenditure is capital or revenue was not raised before the Tribunal, it does not arise from the order of the Tribunal and cannot be entertained (Mahalakshmi Textile Mills 66 ITR 710 (SC) distinguished)

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