- (1.) THE assessee has approached this Court by filing the present appeal by raising following substantial questions of law arising out of order passed by the Income -tax Appellate Tribunal, Amritsar Bench, Amritsar (for short, 'the Tribunal') in ITO (2006) 99 TTJ (Asr) 45 - -Ed.] in respect of asst. yr. 1991 -92 : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in sustaining the order of the CIT(A) wherein the latter had refused to condone the delay in filing of appeal by the assessee, without appreciating the bona fides of the assessee leading to the impugned delay - "2. Whether, on the facts and in the circumstances of the case, the Tribunal had erred in law by failing to appreciate that when the CIT(A) had disposed of the appeal of the assessee and therein rejected the same on merits, therein that itself was an evidence that the CIT(A) was convinced that the appeal of the assessee was not to be rejected on the ground of delay - "3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in not adjudicating upon all the 'grounds of appeal' as were so raised by the assessee, merely for the reason that the order of the CIT(A) on the point of delay in filing the appeals had been upheld by the Tribunal - "4. Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law by not appreciating that as the appeal so filed by the assessee with the Tribunal was well within time, therein the latter was under a statutory obligation to dispose of all the 'grounds of appeal' as were so raised by the assessee, and the reliance placed by the Tribunal upon the judgment of the Hon'ble Madras High Court in the case of Vijayeswari Textiles Ltd. vs. CIT (2002) 176 CTR (Mad) 74 : (2002) 256 ITR 560 (Mad) was misconceived - "5. Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law by not taking cognizance of the 'affidavit' filed by the assessee under r. 10 of the ITAT Rules, 1963, specifically when the contents of the same did go to the very roots of the matter -
(2.) THE appellant -assessee is an AOP having three members. The said three members filed their returns as individuals capacity, the AOP was also assessed to tax on the same income, which was assessed in the hands of assessee as preferred appeal against the order of AO. For non -compliance of provisions of s. 249(4)(a) of the IT Act, 1961 (for short, 'the Act'), the appeal was not entertained by the CIT(A). The appellant instead of challenging the order dismissing the appeal or availing any other remedy against such an order, filed appeal once again pointing out that tax having been subsequently adjusted, there was no default of provisions of s. 249(4)(a) of the Act and thus the appeal should be decided on merits. The said appeal was dismissed on the ground of delay and the order has been upheld by the Tribunal.
(3.) LEARNED counsel for the appellant -assessee submits that filing of appeal again was merely an irregularity and the said appeal could be treated as an application for revival of appeal which was dismissed on account of default in compliance of s. 249(4) of the Act. Alternatively delay in filing of the appeal should have been condoned. It is undisputed that default in compliance of provisions of s. 249(4) of the Act stood made up by subsequent action of adjusting the tax, the case for revival of appeal was made out. Though fresh appeal filed was not maintainable, the same could be treated as an application for revival of appeal earlier dismissed. Instead of condemning the appellant unheard on merits of the controversy, the appeal should have been heard and decided on merits in accordance with law. In view of the above, we set aside the order of the Tribunal as well as order of CIT(A) and by treating the appeal as application for revival in the earlier appeals dismissed on account of non -compliance of provisions of s. 249(4) of the Act, CIT(A) is directed to decide the appeals on merits in accordance with law.;