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3. Aggrieved against the tax being levied at maximum marginal rate each of these assessees went up in appeal before the Commissioner of lncome-tax (Appeals), Visakhapatnarn. Before the Commissioner of Income-tax (Appeals), the assessees relied upon certain favourable orders passed by this Tribunal for earlier years and he contended that their incomes are not liable to be taxed at maximum marginal rate but only at ordinary rates. In fact the assessee relied upon the decision in Sitaratnam Family Trust v. ITO [1987] 22 ITD 117 (Hyd.) before the Commissioner of Income tax (Appeals) and it is contended that following the said decision it should be held that tax should be levied only at ordinary rates. Thus, the learned Commissioner (Appeals) held that the earlier decision of the Tribunal in Sitaratnam Family Trust's case (supra) dealt with a different matter relating to application of Section 164(1) and Section 164A. That decision relates to assessment year 1981-82. The point involved in that decision was whether cash gift made in favour of the assessee-trusts in that decision can constitute oral trusts, whether the beneficiaries of the trusts were determinate and their shares known and if the beneficiaries are either unknown or their beneficial interest cannot be ascertained with any certainty then under Section 164(1), the income of the assessee-trust should be assessed at maximum marginal rate. The Tribunal in that case held that each of the cash gifts received by the sister trusts involved in those cases cannot be said to have received the amounts in pursunce of an oral trust/trusts within the meaning of Section 160(1), Explanation 2. The Tribunal held in that case that because declarations were filed by each of the donors who gave cash gifts before the Gift-tax Officer, those declarations amount to written gifts and as such none of the donors can be said to have given amounts to the recipient trusts under oral gifts. It was further held by the Tribunal that beneficiaries under each of the trusts involved in that case were known and their names clearly ascertainable and the beneficial interest each of them held was also ascertainable and as such Section 164(1) does not come into play and, therefore, the maximum marginal rate cannot be applied under that provision. However the point involved in these appeals before the Commissioner (Appeals) for assessment year 1986-87 is quite different. The question involved in all these appeals is whether the maximum marginal rate can be applied by virtue of Section 161(1A), i.e., whether each of these trusts was carrying on money lending business and earned income during the course of that business and if so whether maximum marginal rate should not be applied under Section 161(1A) which was introduced into the Statute Book on and from 1-4-1985. In fact, the point involved in these appeals was never considered by the earlier decision of the Tribunal now reported in Sitaratnam Family Trust's case (supra) and, therefore, the plea of the assessee that following Sitaratnam Family Trust's case (supra), ordinary rates should be applied to the incomes returned was not accepted and their plea was rejected in that regard. For the first time, the learned Commissioner (Appeals) pointed out that a plea was raised before him by the learned Counsel for the assessee that the assessee did not carry on any money-lending business and since no business was carried on, the income earned does not fall under the head 'Income from other sources' and if no business was carried on by a Trust, the application of maximum marginal rate should be set aside and the application of ordinary rates of tax to the returned income should be ordered in the case of each of these assessees. The learned Commissioner of Income-tax (Appeals) dismissed this contention also holding that it was never raised in the course of assessment proceedings nor could the claim be supported by any relevant material on record inasmuch as, the return together with computation of total income furnished by the assessee clearly declared the source as 'income from own business' (money-lending) barring an amount of Rs. 6,014 in the case of Vijaya Family Trust from bank interest and dividends which was exempt under Section 80L, having been shown under the head 'Other sources'. The learned Commissioner (Appeals) applied the principles of the Supreme Court's judgment in Addl. CIT v. Gurjargravures (P.) Ltd. [1978] 111 ITR 1 and held that it is not open to the assessee to put forth for the first time a new contention that its income was not derived from any business activity in the absence of any ground filed before him and also in the absence of permission sought for raising such additional ground. No material facts and circumstances were placed before him that the failure to raise such ground was not wilful or unreasonable. Therefore, that contention was rejected in limine and the appeals were dismissed by similar orders all dated 27-6-1989 passed in the case of each of these assessees. Aggrieved against the similar orders passed by the Commissioner (Appeals) in the case of each of these assessees, the assessees came up in second appeals before this Tribunal and thus the matter stands for consideration of this Tribunal.