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TMI Blog2018 (4) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 01.11.2017 passed by the Income Tax Appellate Tribunal 'B' (SMC) Bench, Chennai in I.T.A.No.3120/MDS/2016, filed by the appellant assessee in respect of the assessment year 2009-2010, dismissing on the ground that the same was barred by delay of 72 days. 2. Section 260A of the Income Tax Act, 1961 provides as follows: 260A. Appeal to High Court.- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner; (b) [***]; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid law and the Court cannot give a complete go-by to the Law of Limitation. The approach might be pragmatic, but at the same time limitation cannot altogether be ignored. 5. Whether the cause for the delay in filing an appeal is sufficient cause to warrant condonation of the delay and admission of the appeal, is basically an issue of fact. It is doubtful whether such factual findings can be questioned by way of an appeal under Section 260A of the Income Tax Act, unless the findings are vitiated by perversity, which might give rise to a question of law. 6. Even in a case where an appeal was not entertained on the ground of limitation, if there was serious issue of law involved in the appeal, the Court might have considered that issue as an issue of law for entertaining an appeal under Section 260A of the Income Tax Act. However, even the findings of the Appellate Commissioner impugned before the Tribunal did not involve any substantial question of law. 7. In the instant case, the appellant assessee had filed his return of income for the assessment year 2009-2010 on 22.05.2009, declaring total income of ₹ 4,40,330/-. The case was selected for scrutiny, after which as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs.Gnanagandhi on different dates in the following manner and the sources of the deposit of by Mrs.Gnanagandhi was sale of property for ₹ 43,50,000/-. d) The assessee was not able to produce the copy of the sale deed. Mere production of copy of agreement for sale is not sufficient to prove the source of deposit. Further Mrs.Gnanagandhi could have advanced these loans by way of cheque to Mr.Stephen. The entire amount has been advanced in various dates by cash which is not backed by any evidence. 7.1. As evidenced by the remand report the agreement is dated 18/8/2008. There are several deposits before the said date. Therefore, the amount received prior to 18/8/2008 cannot in any case linked to the sale of property. Further, even if there was a sale, the amount does not belong entirely to Mrs.Gnanagandhi. It will belong to her and three others. 7.2. In view of the above facts and circumstances, the assessee was not able to give any evidence in support of cash deposit in his bank account to the tune of ₹ 33,17,177/- This will be treated as unexplained income of the assessee and the addition stands confirmed in the hands of the appellant. 11. The Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment Act, 1973) came up for consideration. The Privy Council held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. 18. In Sir Chunilal Mehta (supra) the Constitution Bench approved the view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju reported in AIR 1951 Mad 969 and held: When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. 19. In Chunilal Mehta (supra), the Supreme Court laid down the following as proper test, for determining whether a question of law raised in the case was substantial: The proper test for determi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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