K.K Usha, J.:— These references, at the instance of the assessee, arise out of a common order passed by the Income-tax Appellate Tribunal, Cochin Bench, in W.T.A Nos. 12.Coch. of 1991, 42.Coch. of 1990 and 161.Coch. of 1992. The relevant assessment years are 1983-84, 1984-85 and 1985-86.

2. Identical questions are raised in all the three cases. They are as follows:

“1. Whether, in the facts and circumstances of the case, the Income-tax Appellate Tribunal was correct in sustaining the addition of Rs. 3 lakhs to the net wealth for the assessment year 1983-84?

2. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal having found that the payment to the outgoing partners are not in the nature of compensation or payment towards goodwill and since the addition of Rs. 3 lakhs was made by the Wealth-tax Officer, towards goodwill only, the Income-tax Appellate Tribunal was correct in law in arriving at a finding that the addition should be upheld not on the grounds of goodwill but as towards the cost of building under construction?

3. Whether, on the facts and circumstances of the case, it was legal for the Income-tax Appellate Tribunal to decide that the addition should be sustained as towards the cost of building under construction, a point which has neither been raised by the appellant nor the Department at any stage?

4. Whether the Income-tax Appellate Tribunal having found that there is no goodwill but having sustained the addition as towards cost of construction the Income-tax Appellate Tribunal had enhanced the addition on a new point not being the subject-matter of appeal and whether such enhancement is correct in law?

5. Whether the Income-tax Appellate Tribunal was correct in their finding that the cost of construction and work-in-progress could be valued at the price at which it can be bought and sold in a hypothetical market when the construction of the first floor of the building was already completed and what can be valued at the crucial date is only the market value of the building?”

3. For the assessment years 1984-85 and 1985-86, question No. 1 has to be read as “for the assessment year 1984-85” and “for the assessment year 1985-86”, instead of “for the assessment year 1983-84”.

4. The relevant facts are as follows:

The assessee, along with his wife, owned a building site. The assessee formed a partnership with five other persons in the name and style, Hotel Hibra. The object of the partnership was running a hotel consisting of boarding and lodging and-also such other incidental and ancillary activities with effect from November 1, 1982. The firm and the wife of the assessee entered into an agreement on November 5, 1982, whereby the assessee's wife allowed the firm to construct a multi-storeyed building in her property for being used as a hotel and lodging house. Since disputes arose between the partners, the partnership was dissolved on March 1, 1983, as per a deed of dissolution dated March 1, 1983, whereby the assessee took over all the assets and liabilities of the firm including the goodwill, trade name, etc. The Wealth-tax Officer added a sum of Rs. 3 lakhs being the amount paid to the outgoing partners at the rate of Rs. 60,000 each as the asset of the assessee on the ground that the amount was paid for the goodwill. He also held that the firm had a right to construct the building on payment of Rs. 2 lakhs to the wife of the assessee and the Tight could be valued at Rs. 2 lakhs for the purpose of inclusion in the net wealth of the assessee. The assessment orders for the years 1983-84 and 1984-85 were taken in appeal. The Deputy Commissioner, Wealth-tax (Appeals) took the view that out of the sum of Rs. 3 lakhs paid to the outgoing partners, the sum of Rs. 1 lakh would be considered as forming part of eviction chatges and it was deleted from the addition. He sustained balance amount of Rs. 2 lakhs towards value of goodwill to be included in the net Wealth of the assessee for the assessment year 1983-84. As fat as the sum of Rs. 2 lakhs payable to the wife of the assessee is concerned, the first appellate authority took the view that it was a liability and its value should be treated as a liability. For the assessment years 1984-85 and 1985-86, the first appellate authority took the view that the assessee himself had a share in the goodwill which could be valued on par with the payment made to the others and, therefore, the actual value of the goodwill was not Rs. 3 lakhs but should be enhanced by the assessee's share in the same and he determined the value of goodwill atRs. 3,60,000. The enhancement was made without notice to the assessee. As far as the sum of Rs. 2 lakhs was concerned, it was held that the same amount has to be included as an asset in the net wealth of the assessee. The appeal for the year 1983-84 was partly allowed and the appeals for the years 1984-85 and 1985-86 were dismissed by the first appellate authority. The assessee filed second appeal before the Tribunal for the years 1984-85 and 1985-86 and the Revenue filed appeal for the year 1983-84. The Tribunal allowed the appeal filed by the Revenue in full and partly allowed the appeals filed by the assessee.

5. The Tribunal took the view that it was difficult to imagine that the firm had acquired any goodwill since it came into existence on November 1, 1982, and was dissolved on March 1, 1983, when the building was under construction. Going by the accounts, the operations of the firm resulted not in profit but only in loss during the short period. According to the Tribunal, the mere fact that payment of Rs. 3 lakhs was described as payment towards goodwill in the deed of dissolution, cannot be conclusive of the existence of goodwill for the firm.

6. It took the view that payment made to the outgoing partners was not in the nature of compensation or payment towards goodwill, but was only in the nature of payment to acquire their interest in the partnership by the assessee. It represented the cost of perfecting the title in the property of the firm and as major property of the firm was in the course of construction, such payment should be treated as part of the cost of construction itself. The Tribunal upheld the inclusion of Rs. 3 lakhs not on the ground of goodwill, but as towards cost of the building under construction.

7. It is contended by learned counsel for the assessee that the Tribunal has no jurisdiction to enter a finding that the addition of Rs. 3 lakhs can be justified as payment made towards the value of the cost of building under construction and not as compensation or consideration for the goodwill, since no such contention was raised by the Revenue. Learned counsel also submitted that no opportunity was given to the assessee to answer such a contention. According to learned counsel, the decision of the Tribunal was outside the subject-matter of the appeal. He placed reliance on a decision of the Bombay High Court in Pokhraj Hirachand v. CIT, [1963] 49 ITR 293. On the other hand, learned standing counsel for the Revenue pointed out that the subject-matter of the appeal was the addition of Rs. 3 lakhs and it is always open to the Tribunal to sustain the addition on a ground, different from that relied on by the Wealth-tax Officer or the first appellate authority. In support of his contention, he relied on a number of decisions, including the decision of the Supreme Court in CIT v. Mahalakshmi Textile Mills Ltd., [1967] 66 ITR 710.

8. We find it difficult to accept the contention raised on behalf of the assessee that the Tribunal has gone outside the subject-matter of the appeal when it sustained the addition of Rs. 3 lakhs as payment made towards the cost of the building under construction Acccrding to us, the subject-matter of the appeal was the addition of Rs. 3 laks. The decision in Pokhraj Hirachand v. CIT, [1963] 49 ITR 293 (Bom) relied on by the assessee has no application in the present case. In that ce se, the question involved in the appeal was whether the payment of Rs. 3 lakhs was capital expenditure or revenue expenditure. But the Tribunal went into the question of fact as to whether the amount of Rs. 3 lakhs was paid alt all. It was under these circumstances, the Bombay High Court took the view that the Tribunal has gone outside the subject-matter of the appeal. On the other hand, in CIT v. Mahalakshmi Textile Mills Ltd., [1967] 66 ITR 710 the apex court found that the subject-matter of appeal in that case was the right of the assessee to claim allowance for Rs. 33,215. Whether the allowance was admissible under one head or the other under sub-section (2) of section 10 of the Indian Income-tax Act, 1922, would no;t change the subject-matter. The Tribunal had jurisdiction to admit the expenditure as a permissible allowance in computation of the taxable income of the assessee when it held that the expenditure incurred fell within the terms of section 10(2)(v) though not under section 10(2)(vib). The matter arose under section 33(4) of the Indian Income-tax Act, 1922, where the wording is similar to section 24(5) of the Wealth-tax Act, 1957. The Supreme Court held that the questions, whether of law or of fact which relate to the assessment of the assessee, can be raised before the Tribunal, and while exercising the power under section 33(4) of the Indian Income-tax Act, 1922, it would be open to the Tribunal to grant relief to the assessee on another ground, even when it rejects the contention raised by the assessee. By applying the same principle in the present case, we find no justification for the complaint of the assessee that the Tribunal has acted beyond its power under section 24(5) of the Wealtli-tax Act. It has to be noted that in the questions formulated, the assessed had not stated that no opportunity was given to the assessee before the Tribunal took the view that the inclusion could be upheld as payment made towards cost of the building under construction.

9. In the light of the above, we answer question No. 1 in all the three references in the affirmative, in favour of the Revenue and against the assessee. Since the other questions are only different facets of question No. 1, we decline to answer questions Nos. 2 to 5.

10. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.