2012 (11) TMI 952

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..... the application for condonation of delay and as a consequence dismissed the appeal and also the application for stay etc. The order passed by the Tribunal is not per se one dismissing the main appeal for non prosecution but is only a dismissal of the appeal as a consequence of dismissal of the application for condonation of delay. There was no valid or tenable appeal of the appellant which was an appeal which required or deserved attention under section 35C of the Act. It would have become a valid appeal only if the appellant should have succeeded in its efforts to get the delay in preferring the appeal condoned - appeal dismissed
D.V. SHYLENDRA KUMAR AND B. SREENIVASE GOWDA, JJ. Cherian for the Appellant. JUDGMENT D.V. Shylendra Kuma .....

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..... provisions of section 35C of the Act on its merits and pass orders on the merits and dismissing the appeal for non-prosecution is not permitted for the Tribunal; that such is the view taken by the Supreme Court interpreting the word 'thereon' occurring in section 35C of the Act which is a word which occurred in section 33[4] of the Income-tax Act, 1922 in the case of CIT v. Chenniappa Mudaliar [1969] 71 ITR 41 (SC) and therefore submits that the order dismissing the appeal of the appellant before the Tribunal for non-prosecution is not an order sustainable in law and is liable to be set aside. 5. Mr. Cherian, learned counsel for the appellant has taken us through the order passed by the Tribunal in the first instance and subsequen .....

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..... nto the merits of the appeal, but not directly because of non-prosecution of the appeal, but as a sequel to the dismissal of the application for condonation of delay. 10. In such circumstances, we are afraid there was no valid or tenable appeal of the appellant which was an appeal which required or deserved attention under section 35C of the Act. It would have become a valid appeal only if the appellant should have succeeded in its efforts to get the delay in preferring the appeal condoned and appeal should have been entertained on merits and that stage having not been reached, the Judgment on which learned counsel for the appellant has placed reliance cannot advance the case of the appellant. 11. Even otherwise, we find that the order pa .....

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