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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 ..... ibunal to proceed in the matter after first considering the application for condonation of delay filed on behalf of the Revenue. - Misc. Appeal No. 356, 357 of 2002 - - - Dated:- 2-3-2016 - Ramesh Kumar Datta And Sudhir Singh, JJ. For the Appellant : Mr. Dr Krishna Nandan Singh, Sr. Advo Mr. Kamal Deo Sharma, Adv Mr. Sriram Krishna, Adv For the Respondent : Mrs. Archana Sinha, Sr SC, IT Mr. Alok Kumar Ms. Shalini Bihari JUDGMENT ( Per: Honourable Mr. Justice Ramesh Kumar Datta ) Heard learned counsel for the appellant in both the appeals and learned counsel for the respondent-Revenue. The appeals were admitted and as many as six substantial questions of law were framed at the time of admission in the decision of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the memo of appeal filed by the Revenue before the ITAT is concerned, admittedly it was filed with a delay of 12 days. From the records produced before us, it is not in dispute that an application for condonation of delay was also filed on behalf of the Department. From the copy of the notice issued to the assessee in the Revenue s appeal, it is evident that the factum of delay was mentioned in the said notice. However, the admitted position is that no specific order condoning the delay in filing the appeal by the Revenue was passed. In the aforesaid conspectus of facts, learned counsel for the appellant submits that since the appeal of the Revenue was beyond the period of limitation prescribed by the Income Tax Act and delay had not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation. Learned counsel also relies upon a decision of the Supreme Court in the case of State of West Bengal ors. Vs. Somdeb Bandyopadhyay Ors.: AIR 2009 SC 1989, the relevant part of para-6 of which is quoted below:- 6. It is to be noticed that even without condoning the delay and entertaining the writ appeal the High Court has passed series of interim orders. Such a course is impermissible as the appeal was non-est in the eye of law without it being entertained. Admittedly, the delay in preferring the writ appeal was not condoned at the time when the interim orders were passed . Learned Senior Standing Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent had moved another application to examine Pritika Prabudesai and that that application stood rejected on 6-11-1997. As the High Court was not aware of this fact and the High Court felt that it was absolutely necessary that the share transfer form and the share certificate be on record of the trial court, the High Court passed the following operative order: 6. I have heard the petitioner, but he was unable to satisfy how his prayer is maintainable at law. He wants the whole proceedings to be quashed and a de novo trial to be started against all the accused. The impugned order shows that before the learned Magistrate the petitioner conceded that there was no such provision of law, which enabled the court to hold a fresh trial ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It must be mentioned that the Court was convinced that the 1st respondent had played a fraud upon it and therefore issued a show-cause notice to him to show cause why action should not be taken against him for having played such a fraud. We have considered the submissions of parties on the question of limitation and we are clearly of the view that unless the delay in filing the appeal of the Revenue had been condoned, the Tribunal had no jurisdiction, power or authority to entertain the appeal and pass any effective order on the same as no appeal could be deemed to be pending before the Tribunal until the delay in filing the same had been condoned. This is clearly the view of the Supreme Court in Noharlal Verma s case (supra). So f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was an application for condonation of delay, which has not been considered by the Tribunal and the final order has been passed allowing the appeal of the Revenue and the order of the Tribunal being couched in a manner that the appeal of the assessee cannot be separated from the appeal of the Revenue, the order dated 25.2.2001 has to be and is quashed in its entirety and the matter is remitted to the Tribunal to proceed in the matter after first considering the application for condonation of delay filed on behalf of the Revenue. In view of our decision on the question of law on the point of limitation, there is no need to decide any other substantial question of law at this stage. Both the appeals are, accordingly, allowed. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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