9911796707
TMI Blog2012 (2) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmed, J 1. This is an appeal under Section 260-A of Income Tax Act, 1961 (hereinafter referred to as "the said Act") in respect of the Assessment Year 2004-05 and is directed against the order dated 08.04.2011 passed by the Income Tax Appellate Tribunal in ITA No. 1542/Del/2010. 2. The appellant's appeal before the Tribunal has been dismissed on the ground of limitation inasmuch as it has been filed after a delay of 1049 days. The appeal before the Tribunal was against the order of Commissioner of Income Tax passed under Section 263 of the said Act on 16.03.2007. After the Commissioner of Income Tax passed the order dated 16.03.2007, the matter was placed before the Assessing Officer for re-computing the income on the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue on merit. The judgment relied upon by the assessee are not application on the facts. In the decision of Hon'ble Calcutta High Court, sub-section (4) of Section 249 was brought on the state book w.e.f 1.10.1975. As per this section before entertaining any appeal of an assessee it has to be seen whether assesse has to pay the undisputed tax. In that case, assessee has not paid the tax and, therefore, its appeal was dismissed by the learned CIT (Appeals) on the ground of non-maintainability. The appeal was filed by the learned CIT (Appeals) on 09.01.1975. Hon'ble High Court has held that right to appeal is a statutory right and an appeal is a continuation of original proceedings. In that case, the right of the assessee to prefer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. The Tribunal has taken the view that there has been a delay of 1049 days in approaching the Tribunal against the order dated 16.03.2007 and that several proceedings have taken place pursuant to the said order which had become final. It would be relevant to refer to paragraph 3.2 of the impugned order. The same reads as under:- "Thus, we find that the Tribunal order is based upon the premise that the order under Section 263 has become final. Assessee has not pointed out to the Tribunal that it was challenging the order under Section 263. It actually filed the appeal much later. From the above factual background it is apparent that assessee had accepted the C.I.T.'s order under Section 263. Later on after a delay of 1049 days it chan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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