Order : 1. This appeal is filed under Section 260A of the Income Tax Act, 1961 (for short ‘the Act’) against the order dated 12.11.2018 passed by the Income Tax Appellate Tribunal, Jaipur (for short ‘the tribunal’). 2. The appeal was admitted on 06.02.2020 on following substantial question of law:- “Whether on the facts and in the circumstances of the case, the Tribunal was justified in allowing depreciation or amortization of mining land and lease hold land of Rs.4,70,33,366/- treating the same as capital expenditure ignoring the provisions of Sections 32 and 35D(2) of the Income Tax Act, 1961, which was not even claimed by the assessee in the original return of the income and the return was not revised within time, which is contrary to the ratio laid down by the Supreme Court in ‘Goetze India Ltd. Vs.CIT’ 248 ITR 323 ? 3. The respondent-company (hereinafter referred to as ‘company’) was engaged in mining, processing and trading of minerals. During the assessment proceedings for assessment year (for short ‘AY) 2015-16, the company claimed amortization to the tune of Rs.4,70,33,366/- of mining land and lease hold land. The Assessing Officer (for short ‘AO’) vide order dated 31.12.2017 rejected amortization stating that the claim was not made in the return and in absence of a revised return, it cannot be entertained. The Commissioner of Income Tax (Appeals) vide order dated 23.03.2018 confirmed the dis-allowance and held that if in absence of the revised return the AO cannot allow the claim and similar would be the position of the first appellate authority. The tribunal in appeal filed by the company without dealing with the issue of amortization allowed the depreciation for the amount claimed as amortization. 4. Learned counsel for the revenue submits that there was no ground raised before the tribunal for claiming depreciation. In absence of the ground or an additional ground permitted to be raised, the tribunal erred in allowing the depreciation for the amount claimed as amortization. The contention is that in the case of company in D.B. Income Tax Appeal No.146/2016 (Rajasthan State Mines & Minerals Ltd. Vs. Assistant Commissioner of Income Tax) decided on 13.12.2017, the issue of amortization was decided in favour of the department. Reliance is placed upon decision of the Supreme Court in Goetze (India) Ltd. Vs. The contention is that in the case of company in D.B. Income Tax Appeal No.146/2016 (Rajasthan State Mines & Minerals Ltd. Vs. Assistant Commissioner of Income Tax) decided on 13.12.2017, the issue of amortization was decided in favour of the department. Reliance is placed upon decision of the Supreme Court in Goetze (India) Ltd. Vs. Commissioner of Income Tax reported in (2006) 284 ITR 323 to argue that in absence of revised return filed claiming depreciation the claim could not have been allowed. Relying upon Division Bench decision of this Court in Commissioner of Income Tax Vs. Pratap Singh reported in (1987) 164 ITR 431 (Raj.) it is argued that in absence of the leave by the tribunal, the ground could not have been raised. 5. Learned counsel for the respondents relying upon decision of the Supreme Court in National Thermal Power Co. Ltd. Vs. Commissioner of Income Tax reported in (1998) 229 ITR 383 (SC) contended that the additional ground can be raised before the tribunal and the deduction which is allowable should not be denied. 5.1. Reliance is placed upon decision of the Bombay High Court in Commissioner of Income Tax Vs. Pruthvi Brokers & Shareholders reported in (2012) 349 ITR 336 and Division Bench of Punjab & Haryana High Court in M/s VMT Spinning Co. Limited Vs. The Commissioner of Income Tax reported in (2016) 389 ITR 326 to argue that under Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963, the additional ground can be raised with the leave of the tribunal. 6. It is an admitted fact that the amortization of mining lease and lease hold land was not claimed in the return but during the assessment proceedings the deduction was sought. The AO rejected the claim for non filing of a revised return, similar was the stand of the First Appellate Authority. The issue before the tribunal was as to whether amortization could have been claimed without filing the revised return. 7. The question that the assessee cannot claim amortization of mining lease and lease hold land was decided inter-se the parties on 31.12.2017 for AY 2010-11 by the Division Bench of this Court in the case of Rajasthan State Mines & Mineral Ltd. (supra). 7. The question that the assessee cannot claim amortization of mining lease and lease hold land was decided inter-se the parties on 31.12.2017 for AY 2010-11 by the Division Bench of this Court in the case of Rajasthan State Mines & Mineral Ltd. (supra). In that very year, it was also decided that the license for use of land for mining is an intangible asset and the assessee is entitled for allowance of depreciation. 8. The pin pointed issue is as to whether in the facts and circumstance of the case the tribunal was justified in allowing the depreciation in absence of basic facts. 9. Before proceeding further it would be relevant to reproduce Rule 11 of the Rules:- “ Grounds which may be taken in appeal 11. The Appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule: Provided that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground.” 10. As per Rule 11 of the Rules no additional ground can be raised before the tribunal except by leave of the tribunal. While deciding the appeal the tribunal shall not be confined to the grounds taken in appeal or raised by leave of the tribunal. The proviso stipulates that before taking decision on any ground not raised in appeal or additional ground, the affected party is to be given sufficient opportunity of hearing. 11. In view of the judgments cited of the Supreme Court in National Thermal Power Co. Ltd. (supra), Punjab and Haryana High Court in M/s. VMT Spinning Co. Limited (supra), Bombay High Court in Pruthvi Brokers & Shareholders (supra), there is no quarrel with the proposition that the additional grounds can be taken before the tribunal. 12. The issue that needs determination is whether additional ground raised in course of the arguments can be considered and decided without the other side having an opportunity to raise the objection for raising of such ground and to oppose it on merits. 13. 12. The issue that needs determination is whether additional ground raised in course of the arguments can be considered and decided without the other side having an opportunity to raise the objection for raising of such ground and to oppose it on merits. 13. The decision of this court dated 13.12.2017 in case of petitioner relied upon by tribunal was rendered during pendency of the appeal before CIT(A) but this issue was neither raised as ground or additional ground before the CIT(A) nor the tribunal. 14. It is neither the case of the company that a leave was granted by tribunal nor there is whisper in the order of the tribunal that the additional ground raised during the course of the hearing was allowed and considered after providing an opportunity to the revenue. 15. In National Thermal Power Co. Ltd. (supra) the Supreme Court held that there is no restriction in raising a question before the tribunal first time so long as the relevant facts are on record. The operative portion of the order is quoted below:- “Under Section 254 of the Income Tax Act, 1961, the Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is, thus, expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, we do not see any reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of that item. We do not see any reason to restrict the power of the Tribunal under section 254 only to decide the grounds which arise from the order of the Commissioner (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier.” (emphasis) 16. Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier.” (emphasis) 16. The basic fact for AY in question with regard to the claim of amortization being made by the company on the mining land and lease hold land was not before tribunal. The tribunal left the issue of amortization unconsidered and allowed the amount of amortization to be treated as depreciation and to be deducted under Section 32 of the Act. The procedure adopted by the tribunal denied the revenue a reasonable opportunity to raise objection with regard to raising of an additional ground or to oppose it on merits. The argument raised by company during the course of hearing was accepted, without testing it on the facts available before the tribunal. 18. The appeal is allowed. Substantial question of law is answered in favour of the revenue.