J.R. CHAUHAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE assessee has approached this Court by filing the present appeal by raising following substantial questions of law arising out of order passed by the Income -tax Appellate Tribunal, Amritsar Bench, Amritsar (for short, 'the Tribunal') in ITO (2006) 99 TTJ (Asr) 45 - -Ed.] in respect of asst. yr. 1991 -92 :

(2.) THE appellant -assessee is an AOP having three members. The said three members filed their returns as individuals capacity, the AOP was also assessed to tax on the same income, which was assessed in the hands of assessee as preferred appeal against the order of AO. For non -compliance of provisions of s. 249(4)(a) of the IT Act, 1961 (for short, 'the Act'), the appeal was not entertained by the CIT(A). The appellant instead of challenging the order dismissing the appeal or availing any other remedy against such an order, filed appeal once again pointing out that tax having been subsequently adjusted, there was no default of provisions of s. 249(4)(a) of the Act and thus the appeal should be decided on merits. The said appeal was dismissed on the ground of delay and the order has been upheld by the Tribunal.

(3.) LEARNED counsel for the appellant -assessee submits that filing of appeal again was merely an irregularity and the said appeal could be treated as an application for revival of appeal which was dismissed on account of default in compliance of s. 249(4) of the Act. Alternatively delay in filing of the appeal should have been condoned. It is undisputed that default in compliance of provisions of s. 249(4) of the Act stood made up by subsequent action of adjusting the tax, the case for revival of appeal was made out. Though fresh appeal filed was not maintainable, the same could be treated as an application for revival of appeal earlier dismissed. Instead of condemning the appellant unheard on merits of the controversy, the appeal should have been heard and decided on merits in accordance with law.