Sabyasachi Mukharji, J.
1. The question sought for in this application is as follows:
' Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that the Appellate Assistant Commissioner of Income-tax had exceeded his powers in entertaining the additional ground of appeal taken before him in respect of the claim for deduction of a sum of Rs. 11,54,995 representing liability for raw jute purchase tax '
2. The question arises under the following circumstances:
The assessee is a Govt. Corporation engaged in jute industry. The assessment year is 1974-75, and the relevant accounting period is April 1, 1972, to June 30, 1973. The liability on account of raw jute purchase tax amounting to Rs. 11,54,995 had arisen during the accounting year relevant to the assessment year under reference. However, it was an admitted fact that the assessee had neither furnished necessary details nor claimed deduction of the said claims before the ITO. After consideringthe submissions of both the assessee as well as the ITO, in view of the decision of the Supreme Court in the case of Kedarnath Jute Mfg. Co. Ltd. v. CIT : 82ITR363(SC) , the AAC allowed the deduction. The ITO was given notice. He was present and he did not, according to the assessee, object for taking up this additional or new ground. Thereafter, the revenue went up in appeal before the Tribunal and the Tribunal felt bound by the decision of the Supreme Court in the case of Addl. CIT v. Gurjargravures P. Ltd. : 111ITR1(SC) , and held that the AAC had no jurisdiction to entertain this additional ground. The Tribunal, therefore, allowed the revenue's appeal.
3. There was an application for reference before the Tribunal. They felt that the question has been concluded by the decision of the Supreme Court and, therefore, refused to make a reference. The assessee has come up under Section 256(2) for directing the Tribunal to make a reference. It is true that in the decision of the case in CIT v. Kanpur Coal Syndicate : 53ITR225(SC) , a three-member Bench of the Supreme Court felt that the AAC had such powers in disposing of an appeal. The scope of his powers was coterminous with that of the ITO. He could also direct him to do what he had failed to do. With great respect this view seems to us may be the appropriate view. But, as we have mentioned before, a subsequent decision of the Supreme Court consisting of two learned judges dealing with this precise point held that where neither was any claim made before the ITO regarding the relief nor was there any material on record to support and from the mere fact that such a claim has been allowed in subsequent years it could not be assumed that the prescribed conditions justifying the claim for exemption under that section were fulfilled, the Tribunal was not competent to hold that the AAC could entertain the question of relief. The decision, however, had no occasion to consider the earlier decision of the Supreme Court. In that view of the matter, it appears to us that the Tribunal was right and we cannot direct any reference and, therefore, the application is rejected.
Sudhindra Mohan Guha, J.
4. I agree.