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TMI Blog1988 (11) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... ners was looking after the accounts or tax matters. Being so laid up, the deponent could not get in touch with his advocate at Hyderabad for giving instructions for filing the appeal. Being the only person conversant with accounts matters, this confinement made him helpless due to which the appeal could not be filed in time. The illness prolonged till May end. As soon as he was little better, in the beginning of June, immediate steps were taken as a result of which the appeal was filed on 7-6-1985. About his treatment, the deponent states that he was medically looked after by Dr. A. Rudra Nagendra Rao in support of which a medical certificate dated 20th June, 85 has been enclosed. 4. Further, as per the appellant certain appeals preferred by the firm pertaining to assessment years 1978-79 and 1979-80 were posted for hearing in between February 1985 to mid April 1985 which were also adjourned from time to time on this count. 5. Relevant as it is to appreciate the controversy, the medical certificate is reproduced below : " This is to certify that N. Venkateswarlu, of Vijayawada has laid up with back ache and sciatic pain and is under my treatment since 1st of February 1985. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual date not known. That the appellant filed an appeal, though belated ; that the assessee could file cross-objections under section 253(4) of the Income-tax Act, 1961 (referred as Act for brief) within one month from the date of the receipt of the appeal memo filed by the revenue. That although the appeal was filed clearly out of time, since it was filed at a time when the cross-objections could have been filed by the appellant, the appeal preferred by them could lawfully be converted into cross-objections. It is also contended that such a treatment could be given to the appeal on the analogy of certain decisions, which we shall refer at the relevant place, rendered under Order 41, rule 22 of the CPC containing identical provisions. 12. Strongly opposing the prayer made on behalf of the appellant, Shri K.K. Viswanatham, learned departmental representative, made the following submissions : (i) That the enquiry report unambiguously and with certainty indicates that there was a violent contradiction in the averments of the managing partner qua his illness, which totally demolishes, the explanation offered, suggesting that the assessee has not only not come with clean hands but h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to this citation, the learned departmental representative impressed upon us that even when the issue was a covered one, it was not permitted to be raised because of the technical reason of the issue not arising out of the AAC's order, which meant that the merits of a case should not weigh in the minds of the Tribunal if it had no jurisdiction to deal with it otherwise. 16. Reliance has also been placed in this respect on a decision rendered by the Rajasthan High Court in Deep Chand Kothari v. CIT [1987] 35 Taxman 223 which is more direct on the controversy. We quote from the head-notes : " Section 250 of the Income-tax Act, 1961 -- Appellate Assistant Commissioner/Commissioner (Appeals) -- Powers of -- Whether in a case where AAC decides appeal, on merit, in assessee's favour without deciding question of jurisdiction raised by assessee, AAC must be deemed to have decided that point against assessee -- Held, yes. " We may also reproduce a passage extracted in this authority from a judgment of the Supreme Court in Kiran Singh v. Chaman Paswan AIR 1954 SC 340 which runs as under : " . . . It is a fundamental principle well-establised that a decree passed by a Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld issue a certificate to Mr. Venkateswarlu in June 1986, the Doctor replied that Shri Venkateswarlu was known to him and his paternal uncle Shri A. Ramchandra Prasad was working under him. As per the Doctor he advised Shri Venkateswarlu to take bed rest although he was not aware as to whether Shri Venkateswarlu actually remained bed ridden at his house ; he was not admitted in his clinic though. When put to the Doctor that as per Shri Venkateswarlu he had paid him a sum of Rs. 240 for 4 months stay in his Nursing Home at the rate of Rs. 60 per month, it has been stated that Shri Venkateswarlu was never bed ridden in the Nursing Home. Shri Venkateswarlu only sought consultation from him for which he did not receive any consultation fee. It is useful to reproduce the following relevant passage from Dr. Rao's statement which is the crux of the deposition : " What I state is the correct state of affairs. I flatly deny his two averments--(1) that he was bed ridden in my clinic at Kothapet (2) he paid me any fees for my consultation as I gave consultation as a friend and not for money consideration and also gave certificate to him without charging him any fees. " Now if we turn t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they do not find any mention in the affidavit dated 3-10-1985, secondly in view of our specific finding that the stand taken by the assessee before us is found to be false they can't claim any additional strength from them. 21. It is herein that we will now refer to the oft-quoted decision of the apex Court in Mst. Katiji's case Shri Ratnakar, learned counsel, forcefully urged before us that as per the law laid down by the Supreme Court a very liberal approach was needed to be meted out to a petition seeking condonation of delay. This has been vehemently opposed by the learned departmental representative on the ground that Mst. Katiji's case has perhaps not been understood in its proper perspective and had no application in the facts and circumstances of the case in hand. 22. Bound as we are, we have gone through Mst. Katiji' case with the utmost care. In our opinion it does not help the appellant as no parallel could be drawn in these two cases. In Katiji's case there was a small delay of 4 days in an appeal preferred by the State of Jammu Kashmir, which having been denied, their Lordships of the Supreme Court held that the expression 'sufficient cause' in section 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o suggest that any other work of the assessee-firm suffered in any manner except the filing of this appeal. Without meaning to comment on as to how the assessee-firm takes care of their interests we find some force in the argument advanced by the learned departmental representative that appeal papers could have easily been forwarded to the counsel and some other partner deputed to execute the job of filing of the appeal without such abnormal delay. However, without at all being affected by such inaction on the part of the firm, what is bothering us is the sharp and inconsistent difference on the two vital aspects in the assessee's stand, namely, the hospitalisation of the assessee's managing partner and the payment of the fee to the doctor. As already held there cannot be any meeting point on these contradictions, violent in nature and which coupled with the other facts and circumstances of the case discussed above lead to the only inference that Shri Venkateswarlu was never seriously ill much less incapacitated to move out. He had at best taken some consultation from Dr. Rao and did not pay him any fee. The medical certificate issued by Dr. Rao does not therefore, at all repose an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adani v. ITO [1988] 25 ITD 57 (Bom.) and the second is an unreported decision dated 8-2-1988 by A-Bench of this Tribunal in the case of Mochlaso Refrigerator Co. [IT Appeal No. 716, 717 and 848 (Hyd.) of 1987] to which one of us is a party. Thus on merits, the limitation plea fails. 28. We now take up the alternative plea raised by the assessee's counsel to the conversion of this appeal into cross-objection. In this connection, while Shri Ratnakar has placed reliance on two decisions one of the Punjab and Haryana High Court in Sangit Mohinder Singh v. Punjabi University AIR 1975 Punj. Har. 318 and the other of the High Court of Rajasthan in Ramswarup v. State of Rajasthan AIR 1973 Raj. 157, Shri K.K. Viswanatham, representing the revenue has placed reliance on ITO v. Fagoomal Lakshmi Chand [1979] 118 ITR 766 (Mad.), Hukumchand Mills. Ltd. v. CIT [1967] 63 ITR 232 (SC), ITO v. R.L. Rajghoria [1979] 119 ITR 872 (Cal.), A. Premchand v. IAC [1985] 153 ITR 744 (Kar.), CIT v. G.M. Chennabasappa [1959] 35 ITR 261 (AP) and CIT v. B. Pandaiah Co. [1983] 143 ITR 464 (AP). 29. We have considered this matter carefully. 30. At the outset, we may refer to the contention raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case even the remanding of the matter was beyond the Tribunal's jurisdiction. 34. Particularly referring to the decision of the Karnataka High Court in A. Premchand's case, the learned departmental representative urged that on procedure wherein an additional ground was taken before the Tribunal for the first time it was held that such a ground could not be admitted. 35. Referring to two decisions of the High Court of Andhra Pradesh, Shri Viswanatham submitted that in Chennabasappa's case and B. Pandaiah Co.'s case, it was held that the Tribunal could not make out a new case for the assessee by taking up ground or arguments or indulging in guesses and conjectures which the assessee never raised before it. 36. If we recapitulate the facts of this case, it may be recalled that the prayer to treat this time barred appeal as cross-objection was made for the first time and that too at the fag end of the arguments. Such a prayer is not at all borne out of the condonation issue of which alone the Tribunal is in seisin. 37. Although as per the two citations relied on by the learned counsel for the appellant under the Civil Procedure Code a cross-appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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