9911796707
TMI Blog1993 (10) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... oner filed a return declaring a total income of Rs. 6,92,290. The second respondent, Income-tax Officer, determined the income at Rs. 9,77,860 and in arriving at the total income, the Income-tax Officer made an addition of a sum of Rs. 1,27,678 as per exhibit P-1 assessment order being income from undisclosed sources. Aggrieved by exhibit P-1 order, the petitioner filed an appeal before the Commissioner of Income-tax (Appeals) who refused to entertain the same and dismissed the appeal in limine for non-payment of admitted tax without any good or sufficient reason as per exhibit P-2 order. The petitioner took up the matter in second appeal before the Appellate Tribunal and the Tribunal also, without going into the merits of the case, dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in a case where the appeal has been disposed of in limine without going into the merits as in the instant case. The petitioner has a further case based on Circular No. 367, dated July 26, 1983, issued by the Board according to which the Board are of the view that an order cannot be said to have been made "subject of an appeal" if the appeal has been disposed of by the Commissioner (Appeals) or the Appellate Tribunal without passing an order under section 251(1) or 254(1) on the merits. In reply, learned counsel for the Revenue would submit that the case comes squarely within the mischief of section 264(4)(a) of the Income-tax Act since the petitioner has not waived his right of appeal. He would further submit that the petitioner has fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after, the assessee filed second appeals to the Sales Tax Appellate Tribunal, Madras. Those appeals were dismissed as having been time-barred. After the Tribunal dismissed the appeals, the assessee moved the Board of Revenue under section 34(1) of the Madras General Sales Tax Act to revise the assessment orders. The Board held that it has no jurisdiction to entertain those revision petitions. The High Court, in the writ petitions filed at the instance of the assessee, held that the Board had jurisdiction to entertain those revision petitions and consequently issued a writ of mandamus to the Board to entertain the revision petitions and consider them on the merits. Being aggrieved by the said decision of the High Court, the State approached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is time-barred, there is no effective disposal of the appeal and hence the Board of Revenue has jurisdiction to revise the order which has been made subject of the appeal to the Appellate Tribunal. The next decision on which reliance was placed by learned counsel for the petitioner is the one in Chiranjilal Daga v. CIT [1978] 113 ITR 363 (Mad), wherein the assessees appeal to the Appellate Assistant Commissioner was dismissed as time-barred and, on appeal to the Tribunal, the assessee raised grounds relating to the merits also. The Tribunal, without dealing with the merits, dismissed the appeal as time-barred and confirmed the order of the Appellate Assistant Commissioner dismissing the appeal as time-barred. On revision to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving regard to the interpretation placed by the Supreme Court on the expression " subject of an appeal" in Board of Revenue v. Raj Brothers Agencies [1973] 31 STC 434 (SC) and the later decision of the Madras High Court in Chiranjilal Daga v. CIT [1978] 113 ITR 363, construing the very same expression "subject of an appeal" occurring in section 264 of the Income-tax Act as subject of effective appeal, I am of the view that the matter stands squarely concluded by the above decisions in favour of the petitioner-assessee and against the Revenue. 1, therefore, allow this original petition and quash exhibits P-1 and P-4 orders passed by the respondents. The findings of the first respondent that "the revision petition filed by the assessee is i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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