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TMI Blog2014 (12) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory right and it can be circumscribed by the conditions in the grant - If the statute gives a right to appeal upon certain conditions, it is upon fulfillment of those conditions that the right becomes vested in and exercisable by the appellant - the assessee's appeal is delayed as alleged by CIT(A) and without admitting the appeal he has adjudicated the same on merits - Once the appeal is not admitted nothing is pending before him – relying upon CIT Vs. Mysore Iron & Steel Works [1949 (3) TMI 17 - BOMBAY HIGH COURT] - once CIT(A) not admitted the appeal as barred by limitation, he should not have adjudicated on merits - The findings given by CIT(A) on merits will have no bearing on fresh adjudication by CIT(A), in the set aside appellate proceedings – thus, the morder fo the CIT(A) is set aside and the matter is remitted back for adjudication – decided in favour of assessee. - I.T.A No.1397/Kol/2014, I.T.A No.1399/Kol/2014, I.T.A No.1401/Kol/2014, I.T.A No.1403/Kol/2014, I.T.A No.1406/Kol/2014 - - - Dated:- 5-11-2014 - Shri Mahavir Singh Shri Shamim Yahya, JJ. For the Appellant : Shri S. M. Surana, Advocate For the Respondent : Shri S. S. Alam, JCIT, Sr. DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treatment. Again I went to serve the orders on 04/01/2012 at 1.00 P.M. and found the doors locked. The same thing happened on 06/01/20l2 when I went to the assessee's residence at 4 .00 P.M. to find that the doors were locked. I then affixed all the assessment orders, Demand notices Penalty notices for A.Y 2004-05, 2005-06, 2006-07, 2007-08 and 2009-10 all dated 30/12/2011 at the door of entrance of the assessee's flat no. 114/4/1A, Tollygunge Road, Kolkata-700026 on 06/01/2012 between 4.00 P.M. to 4.30 P.M. Submitted alongwith affixation notice. 4. The CIT(A) has not condoned the delay and dismissed the appeal as time barred by observing in para 3.3 of his appellate order as under: 3.3 Therefore, the appeal has been filed after a lapse nearly 310 days. The appeal filed much beyond the time prescribed in section 249 of the 1.T Act. The reason given for filing of late appeal [Non-receipt of order served by affixture] can not be accepted as the assessee was assisted by Authorized Representative for his proceeding. The assessment year of the current year was reopened as a result of assessment done for A.Y. 2008-09, in which the maintenance of an u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y allowing peak credit ignoring the explanation filed by the assessee particularly when there was no evidence to suggest that the appellant made investment out of the cash withdrawals made from the same bank. 6. For that the Ld. C.I.T(A) erred in not deleting the deposits of ₹ 2,10,780/- made by cheque ignoring the explanation filed by the assessee. 7. For that the Ld. C.I.T(A) erred in not allowing the claim of ₹ 50,000/- made u/s. 80D made by the assessee for which necessary evidences were filed and the Ld. C.I.T(A) even failed to given any finding on the said disallowance even though specific ground was taken against the said disallowance. 8. For that on the facts and circumstances of the case the addition of ₹ 12,58,000/- ₹ 2,10,780/- and ₹ 50,000/- should have been deleted by the Ld. C.I.T(A). 9. For that the Ld. C.I.T(A) erred in not dealing with the appeal of the assessee with regard to the charging of interest U/s. 234B since the said interest was charged U/s. 234B(1) which could have been charged only under sec. 234B(3). 6. At the time of hearing, Ld. counsel Shri S. M. Surana, Advocate stated that assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was served through affixture and assessee was aware about the proceedings going on. 7. We have heard rival submissions and gone through facts and circumstances of the case. First of all it is immaterial to discuss, whether assessment order was served through affixture validly or not but the assessee obtained the copy of assessment order from the AO for the first time and filed appeal within the limitation period after obtaining this assessment order. It is also a fact that the assessee's wife was under treatment for cancer at Christian Medical College, Vellore during this period of delay. This is evident from the medical certificate issued by Christian Medical College, Vellore. We find that the cause is reasonable for filing of appeal belatedly i.e. after expiry of limitation period, if there is any. In such circumstances, we condone the delay before CIT(A) and direct him to admit the appeal. 8. Further, in the present case before us the CIT(A) has not condoned the delay but he as adjudicated the issues on merits as is evident from the impugned appellate order. We are of the view that in case CIT(A) chose not to condone the delay, he has no business to adjudicate the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee against an order made by the Appellate Assistant Commissioner under Section 30 of the Act. Now Mr. Banaji has contended that in refusing to condone the delay, the Appellate Assistant Commissioner has really dismissed his appeal and confirmed the order of assessment. In my opinion, that is an entirely erroneous contention because the Appellate Assistant Commissioner can only confirm an assessment and make an order of confirmation or dismissal of the appeal provided the appeal is presented within time or been admitted after condonation of delay and is heard and disposed of on merits. In this case we do not reach the stage of Section 31 at all. The appeal never came to be admitted, and no question can possibly arise of an order made by the Appellate Assistant Commissioner confirming the assessment made by the Income-tax Officer. Mr. Banaji has relied on two judgments of the Patna High Court which, in my opinion, really have no bearing on the facts before us. One is Kunwarji Ananda v. Commissioner of Income-tax, Bihar and Orissa ((1931) I.L.R. 11 Pat. 187). There a Full Bench of the Patna High Court considered an order made by the Assistant Commissioner that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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