The Appellate Tribunal is justified in admitting additional grounds for additional items of claims under Section 35b of the Income Tax Act, 1961, which were not made before the Income-tax Officer or the Appellate Assistant Commissioner, if the assessee had claimed relief under Section 35b from the very inception and the additional items of expenditure are sought to enhance the quantum of the claim, rather than introducing an entirely new claim.

DIPAK KUMAR SEN, J.

( 1 ) GORDHANDAS Jerambhai, the assessee, a registered firm, was assessed to income-tax for the assessment year 1971-72, the corresponding previous year ending on October 31, 1970. In the assessment proceeding, the assessee claimed weighted deduction for export markets development allowance under Section 35b of the I. T. Act, 1961. The ITO rejected the claim on the ground that full details and evidence had not been furnished.

( 2 ) THE assessee preferred an appeal against the assessment to the AAC, inter alia, against the disallowance of its claim under Section 35b. Evidence was produced before the AAC to establish that the assessee was exporting jute and tea to foreign countries and in connection therewith had incurred travelling expenses amounting to Rs. 6,337. The AAC accepted the evidence and directed the ITO to allow deduction to the assessee under Section 35b to extent as claimed.

( 3 ) AGAINST the order of the AAC, the assessee preferred a further appeal to the Income-tax Appellate Tribunal and, in the appeal, filed a petition to raise additional grounds of appeal claiming further weighted deduction under Section 35b of the said Act in respect of its other expenditure incurred in connection with its export business amounting to Rs. 4,37,502 and in connection with export promotion amounting to Rs. 2,29,454.

( 4 ) THE Tribunal noted that specific claims for the said amounts had not been made by the assessee either before the ITO or before the AAC. The Tribunal, however, allowed the petition of the assessee in the interests of justice and remanded the matter to the ITO for examining the same and passing necessary orders in accordance with law.

( 5 ) ON an application of the Revenue under Section 256 (1) of the I. T Act, 1961, the following question stated to be a question of law has been referred for our opinion:"whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in admitting the additional grounds raised before it for claims under Section 35b which were not made either before the Income-tax Officer or before the Appellate Assistant Commissioner and in sending the matter back to the Income-tax Officer for examining the claims and passing necessary orders in accordance with law ?"

( 6 ) WE reframe the question referred to us to bring out the real controversy between the parties. "whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in admitting the additional grounds raised before it for additional items of claims under Section 35b which were not made either before the Income-tax Officer or before the Appellate Assistant Commissioner and in sending the matter back to the Income-tax Officer for examining the claims and passing necessary orders in accordance with law ?"

( 7 ) IT is clear from the records that the assessee had claimed relief under Section 35b of the said Act from the very inception. The claim preferred initially before the ITO was rejected on the ground of lack of evidence. Evidence on one item, i. e. , travelling expenses, was adduced before the AAC and was allowed.

( 8 ) BEFORE the Tribunal, the assessee has only sought to introduce additional items of expenditure to enhance the quantum of its claim. It cannot be held, in the facts, that the assessee introduced an entirely new claim before the Tribunal for the first time which was not raised in the earlier proceedings. Learned advocate for the Revenue strongly relied on the decision of the Supreme Court in Addl. CIT v. Gurjargravures P. Ltd. and invited us to apply the principles laid down in the said decision to the facts of the instant ease. He also relied on subsequent decisions of the High Court which have followed and applied the above decision of the Supreme Court being: (a) CIT v. Orient Prospecting Co, [1983] 141 ITR 301, a decision of the Gujarat High Court ; (b) CIT v. Anand Prasad [1981] 128 ITR 388, a decision of the Delhi High Cour

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