1987 (10) TMI 34

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..... ent year 1976-77, an appeal was preferred by the assessee before the Commissioner of Income-tax (Appeals). An application was also presented on behalf of the assessee for exemption from the provisions of section 249(4) of the Income-tax Act, 1961 (hereinafter referred to as " the Act "). This application was made under the proviso to section 249(4) of the Act which contemplates that on an applicat .....

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..... and the matter Was remanded to the Commissioner of Income-tax to dispose of the appeal filed by the assessee afresh in the manner indicated by the Tribunal in its order. Thereafter, an application was made by the Commissioner of Income-tax before the Tribunal under section 256(1) of the Act to refer the following two questions to this court for its opinion : " 1. Whether, on the facts and in th .....

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..... re of the opinion that there is no substance in this application. As regards the first question, it has been urged by learned counsel for the Department that since the order passed by the Commissioner of Income-tax (Appeals) was not an order under section 250 of the Act but an order under sub-section (4) of section 249 of the Act and an appeal before the Tribunal was maintainable only against an .....

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..... appeal lay from that order to the Appellate Tribunal. In our opinion, the principle laid down by the Supreme Court in the case of Melaram [1956] 29 ITR 607 applies with equal force to the facts of the instant case also, the only difference being that in the case of Melaram [1956] 29 ITR 607 (SC), the appeal had not been admitted on the ground that it was barred by time, whereas in the instant case .....

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..... only to reverse the order passed by the Commissioner of Income-tax (Appeals) but also to exercise such jurisdiction as would be exercised by the Commissioner of Income-tax under the proviso to sub-section (4) of section 249 of the Act. It is for these reasons that we are of the opinion that there is no merit in this application which is accordingly dismissed. In the circumstances of the case, th .....

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