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TMI Blog2016 (4) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... me of admission in the decision of this Court. The third substantial question is in the following terms: "Whether the learned Tribunal was correct in law in entertaining the appeal without considering the issue of limitation and without condoning the alleged delay? In our view if the aforesaid question is answered in the negative then there would be no occasion to proceed with hearing the other substantial questions of law. For the assessment year 1995-96 in relation to the assessee-appellant, the Deputy Commissioner of Income Tax, Special Range-III, Patna passed the order dated 31.3.1998 under Section 143(3) of the Income Tax Act, 1961. Aggrieved by the same the assessee filed an appeal being ITA No. 128/P/A-II/98-99 before the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and delay had not been condoned by the Tribunal, hence the final order passed by the Tribunal itself is without jurisdiction as in the absence of such condonation of delay, no appeal on behalf of the Revenue could be said to be pending before the Tribunal. In support of the aforesaid stand learned counsel relies upon a decision of the Supreme Court in the case of Noharlal Verma Vs. District Cooperative Central Bank Limited, Jagdalpur: (2008) 14 SCC 445 relying upon paras 32 and 33 thereof which are in the following terms:- "32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding Counsel for the Income Tax Department, on the other hand, submits that the application for condonation of delay having been filed by the Revenue and notice with regard to the same also having been served upon the assessee, it would be deemed that the limitation has been condoned once the final order has been passed. It is further submitted by learned counsel for the Income Tax Department that the fault equally lay with the assessee because in view of the notice dated 2.11.2001 issued to them they were very well aware of the pendency of the limitation petition. In support of her stand learned counsel for the Revenue relies upon a decision of the Supreme Court in the case of Hindustan Construction Co. Ltd. & anr. Vs. Gopal Krishna Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the accused. It is, therefore, not possible to grant the said prayer made by the petitioner in this petition. However, having regard to the abovementioned facts and to secure ends of justice I think that it would be proper to direct the learned Magistrate to pass an appropriate order on the application dated 9-3-1995 filed by the petitioner praying for issue of summons to Pritika S. Prabudesai. The learned Magistrate should allow the said application permitting the petitioner to lead additional evidence of Pritika S. Prabudesai or her guardian in whose custody the said share certificate is, after recording the additional evidence in terms of the application dated 9-3-1995. By giving opportunity to the accused to cross-examine the wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter being within the knowledge of the assessee also is concerned, the same has no relevance as the limitation application having been filed by the Revenue in its appeal which was time barred, it was for the Revenue to have pressed such application which has not been done. We are not aware of any such duty imposed by law upon learned counsel for the respondent to press an application for condonation of delay filed on behalf of the appellant. So far as the reliance upon a decision of the Supreme Court in the Hindustan Construction Company's case (supra) by learned counsel for the Revenue is concerned, it is relevant that no such proposition flows from the same nor there can be deemed condonation of limitation merely because a final orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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