The Assessee had imported spirit from outside West\u00a0 Bengal in terms of rule 6 of\u00a0 the West Bengal Excise (Manufacture of Country Spirit in Labelled and Capsuled Bottles) Rules, 1979 during assessment years 1984-85 and 1985-86. Apart from the\u00a0\u00a0 fee which was payable by the manufacturer for the privilege of manufacturing of country spirit in labelled and capsuled bottles, an additional fee was payable on\u00a0 the import of spirits. Clause (a) of section 43B as inserted by Finance Act, 1983\u00a0 only applied to any amount payable as tax or duty. Subsequently, the said clause was substituted by the Finance Act, 1988 with effect from 01.04.1989 to include any amount also payable as a cess or fee. Deduction of the said fee was denied by \u00a0the AO invoking the provisions of section 43B of the Income-tax Act which was upheld by the CIT(A) holding fee payable to the Government by whatever name called as a duty. The Tribunal had however deleted the\u00a0 disallowance holding that section 43B as it then stood did not apply to fee. The High Court upheld the Tribunal\u2019s order holding that the amount paid by the assessee was neither a duty nor a cess or fee but was a price for the grant of the privilege. For the first time before the Supreme Court, the Revenue urged that the duty was in the nature of\u00a0\u00a0\u00a0\u00a0\u00a0 a countervailing duty which the State Government was competent to levy under entry 51 of List II to the Constitution of India. Assessee urged before the Court\u00a0\u00a0\u00a0 that this issue had not beenraised by the Revenue even before the Tribunal.<\/p>\n
\u00a0<\/p>\n
Whether it was competent for the Supreme Court to allow a new issue to be raised in an appeal for the first time before it arising under section 262 of the Income-tax Act.<\/p>\n
\u00a0<\/p>\n
According to the Court, the issue relating to treatment of the said payment as countervailing duty had neither been raised before the Tribunal or in the reference application. However, it has concluded that the Tribunal as well as the High Court erred in not dealing with the same. Nevertheless, the Revenue has been granted\u00a0\u00a0 the benefit of doubt that this is what was intended to be argued.\u00a0 Apart from this,\u00a0\u00a0 ithas also been observed that they cannot shut out what is a pure question of law<\/p>\n
\u00a0<\/p>\n
\u00a0<\/p>\n
The Court has entertained the new issue and remanded the matter back to the Tribunal for deciding the same. (AY. 1984-85, 1985-86) (CA Nos. 8667-8688 of 1997 & Ors, dt. 2-3-2006)<\/p>\n
Editorial: <\/em><\/strong>In CIT v. Jhabua Power Ltd (2013) 262 CTR 277\/93 DTR (SC) 469\/217 Taxman 399 (SC) <\/em><\/strong>also the Supreme Court realizing that a fresh issue was raised before them for the first time remanded the matter back to the Tribunal for reconsideration.<\/p>\n \u201cWe may stumble and fall but shall rise again; it should be enough if we did not run away from\u00a0\u00a0 the battle.\u201d<\/em><\/p>\n – Mahatma Gandhi<\/p>\n","protected":false},"excerpt":{"rendered":" S.262: Appeal to Supreme Court \u2013 New ground relating to same issue allowed to be raised for the first time \u2013 Pure question of law
\n[ S.43B , West Bengal Excise (Manufacture of Country Spirit in Labelled and Capsuled Bottles) Rules, 1979 , R .6 ]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[21],"tags":[],"class_list":["post-13475","post","type-post","status-publish","format-standard","hentry","category-income-tax-act"],"acf":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p9S2Rw-3vl","jetpack-related-posts":[],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/posts\/13475","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/comments?post=13475"}],"version-history":[{"count":1,"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/posts\/13475\/revisions"}],"predecessor-version":[{"id":13476,"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/posts\/13475\/revisions\/13476"}],"wp:attachment":[{"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/media?parent=13475"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/categories?post=13475"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/itatonline.org\/digest\/wp-json\/wp\/v2\/tags?post=13475"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}