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TMI Blog2009 (4) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the writ petition, without deciding whether the delay in filing the first appeal was condonable X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Tribunal set aside the order of the Commissioner (Appeals) and remitted back the matter to the assessing officer to pass appropriate order after the decision rendered by the High Court in the writ petition. The correctness of the same is now canvassed in this appeal on the ground that in the appeal before the Tribunal, the correctness of the order of the Commissioner of Income-tax (Appeals) in rejecting the application to condone the delay was only questioned and it has not been argued on merits. When such being the position, the Tribunal would not have set aside the order and remitted back the matter to the assessing officer with a direction to await for the decision of the High Court in the writ petition pending consideration. 3. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o condone delay would tantamount to confirming the order of assessment. Hence, the appeal is maintainable and the appeal can be decided on merits for which proposition the Division Bench has also taken into consideration of the order of the Supreme Court in the case of MELA RAM AND SONS VS. COMMISSIONER OF INCOME TAX, PUNJAB, (1956) XXIX ITR 667, wherein the three Judges Bench of the Supreme Court having regard to Section 30(2) of the old Income-tax Act held that there was no sufficient reason for excusing delay and rejecting the appeal under Section 32 of the Income-tax Act as time-barred is an order passed under Section 31 and an appeal lies from that order to the Appellate Tribunal and the Tribunal can well go into the merits of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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