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In the case of Joseph Kuruvilla Vs. Commissioner of Income-tax (234ITR55) the counsel for the assessee did not raise a particular issue at the time of hearing. The assessee therefore filed a miscellaneous petition and contended that its counsel did not raise a particular issue at the time of hearing by oversight and such a situation would not preclude the assessee from raising it now since laches on the part of counsel, should not make the litigant suffer.

The Tribunal held that the particular issue would be deemed to have been decided against the assessee or alternatively it should be presumed that the concerned issue was not pressed before the Tribunal by the counsel.

In explaining the role of a lawyer the Kerala High Court held that the Courts have always considered counsels to have a discretion as to whether to argue a particular point or not and in such a situation any averment relating to the mistake of counsel or his oversight has to understood in the context of the wide discretion available to him. It held that the Tribunal has acted in consonance with the recognition of the discretion of counsel in not admitting the miscellaneous petition in this case.

It is therefore utmost important for any person who is representing the case of a company to keep into account the fact that all grounds as per memorandum of appeal are properly raised at the time of hearing.

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