Commissioner of Internal Revenue v. Investors Finance Corp.

FORMER TWELFTH DIVISION [CA-G.R. SP No. 26758. December 21, 1992.] COMMISSIONER OF INTERNAL REVENUE , petitioner-plaintiff, vs . INVESTORS FINANCE CORPORATION (FCNB FINANCE) AND THE COURT OF TAX APPEALS , respondents-defendants . R E S O L U T I O N HERRERA , J p : Petitioner Commissioner of Internal Revenue has filed a Motion for Reconsideration of the decision promulgate on June 29, 1992 which affirmed the decision of the Court of Tax Appeals finding respondent Investors Finance Corporation entitled to a tax refund in the amount of P449,581. Petitioner has attached to said Motion for Reconsideration papers and documents which appear or tend to prove that respondent investors Finance Corporation is liable instead to pay deficiency income tax in the aggregate amount of P1,422,355.68 for the year 1982. Admittedly, petitioner failed, thru oversight, to present and submit said papers and documents at the time the case was being heard in the Court of Tax Appeals (vide: Affidavit of Merit executed by the BIR attorney-in-charge pp. 62-24, Rollo). In a catena of case, the Supreme Court had consistently ruled that an issue which was neither averred in the complaint nor raised during trial in the court below cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play, justice and due process (Matienzo vs. Servidad, 107 SCRA 276; Dela Santa vs. CA, 140 SCRA 44; Anchuelo vs. IAC, 147 SCRA 434; Dihiansan vs. CA,. 157 SCRA 434; Gevero vs. IAC, 189 SCRA 201; Rosales vs. CA, 200 SCRA 300). The documents and papers which petitioner now tenders to prove that private respondent had incurred income tax deficiency cannot be admitted. Said documents and papers, which otherwise could have been presented and offered as evidence by petitioner before the tax court below, raise new matter apropos the factual issue of tax deficiency, and as such, may come as a surprise to the adverse party. Precisely, this is what is proscribed under prevailing jurisprudence. WHEREFORE, the Motion for Reconsideration filed by petitioner is hereby DENIED for lack of merit SO ORDERED. Lapea, Jr . and Austria-Martinez, JJ . , concur.