9911796707
TMI Blog1977 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... id assessment year. The petitioner as against the said order of assessment, filed an appeal before the Appellate Assistant Commissioner. The said appeal was rejected on the ground that it is time-barred by 28 days. Thereafter, the petitioner filed an appeal before the Appellate Tribunal as against the said appellate order. In preferring the appeal before the Tribunal there was also a delay. The Tribunal chose to condone the delay but ultimately upheld the order of the Appellate Assistant Commissioner rejecting the appeal as time-barred, after holding that the petitioner had not made out sufficient cause for the condonation of delay of 28 days. The Tribunal had not gone into the merits of the assessment in view of its order confirming the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit ......... (4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Appellate Tribunal, the assessee has not waived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it was filed after the prescribed time the order cannot be said to be the subject of an appeal. A similar view was taken in Erode Yarn Stores v. State of Madras [1963] 14 STC 724 (Mad), while construing an analogous provision in the Madras General Sales Tax Act, wherein it has been held that the Board of Revenue was not prevented from exercising its power of revision under section 34 of the Madras General Sales Tax Act, 1959, solely for the reason that a belated appeal had been filed to the Appellate Tribunal, that when section 34(2)(b) speaks of an order having been made the subject of an appeal to the Appellate Tribunal, it was an effective appeal that was contemplated and that where a petition to condone the delay in filing an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it has to be disposed of on merits by him. However, learned counsel for the revenue relied on the observations in Mercantile Tobacco Corporation v. Commissioner of Income-tax [1965] 57 ITR 483 (AP), and submitted that the proper test to find out whether the order has been made the subject of an appeal is to see the petitioner's memorandum of grounds of appeal and that in this case since the memorandum of grounds of appeal filed before the Tribunal also challenged the merits of the assessment, the order passed by the Tribunal on such an appeal should be taken to be conclusive on this question. It is true in this case, the memorandum of grounds of appeal not only dealt with the question of delay but on the merits of the assessment. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er did not deal with the assessment on merits. Therefore, even though the petitioner has questioned the assessment in the grounds of appeal before the Tribunal which he is bound to do, the order of the Tribunal which only related to the question of delay, cannot be treated as one on merits. Therefore, the principle of that decision cannot apply to the facts of the case on hand. Reference was also invited to the decision in C. Gnanasundara Nayagar v. Commissioner of Income-tax [1961] 41 ITR 375 (Mad). In that case, Rajagopalan and Srinivasan JJ. held that an order of assessment cannot be revised by the Commissioner on an application under section 33A of tne Indian Income-tax Act, 1922, if an appeal has been preferred against that order to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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