Income Tax Appellate Tribunal - MumbaiChetan Ramniklal Shah , Mumbai vs Ito ,Wd- 3(1), Kalyan on 19 December, 2018आयकर अपीलीय अधिकरण "E " न्यायपीठ मब
                                              ुं ई में ।
 IN THE INCOME TAX APPELLATE TRIBUNAL " E" BENCH, MUMBAI

      श्री महावीर स हिं , न्याययक        दस्य एविं श्री जी. मंजनु ाथ लेखा   दस्य के    मक्ष ।
       BEFORE SRI MAHAVIR SINGH, JM AND SRI G MANJUNATHA, AM

                 Aayakr ApIla saM . /      ITA No. 2816/Mum/2018
                 (inaQa- a rNa baYa-   / Assessment Year 2010-11)

                 Aayakr ApIla saM . /      ITA No. 2818/Mum/2018
                 (inaQa- a rNa baYa-   / Assessment Year 2011-12)

Shri Chetan Ramniklal Shah,                               The Income         Tax      Officer,
Room No. 21, KOteshwar                                    W ard, 3(1)
Dham CHS, Sanetorium Lane,                                Kalyan
                                                Vs.
Sudarshan Road, B/h/ Hi ndu
Sabha Hospital, Mumbai -400
086
       (ApIlaaqaI- / Appellant)                     ..        (p`%yaqaaI- / Respondent)
                   स्थायी ले खा            िं . / PAN No. AVPPS2870N

अपीलाथी की ओर      े / Appellant by             :        Shri Bhadresh Doshi, AR
प्रत्यथी की ओर   े / Respondent by              :        Shri Chaudhary Arun Kumar
                                                         Singh, DR

        न
        ु वाई की तारीख / Date of hearing:                            18-12-2018
      घोषणा की तारीख / Date of pronouncement :                       19-12-2018


                                       AadoSa / O R D E R

महावीर स हिं , न्याययक दस्य/
PER MAHAVIR SINGH, JM:These appeals of the assessee are arising out of the common order
of Commissioner of Income Tax (Appeals)-1, Mumbai [in short CIT(A)], in
appeal No. ITA No. 981 & 982/2014-15 dated 28.02.2018. The2ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 8


Assessments were framed by the Income Tax Officer, ward-3(1), Mumbai
(in short 'ITO/ AO) for the A.Ys. 2010-11 & 2011-12 vide order dated
21.08.2014 under section 143(3) read withsection 147of the Income Tax
Act, 1961 (hereinafter 'the Act').2.    At the outset, it is noticed that the CIT(A) while adjudicating the
appeals in both the years has first not condoned the delay and appeal
was dismissed as not maintainable. The finding of CIT(A) in Para 1.1 as
under : -"1.1   The above submission of the appellant has
             been considered and found to be general, after
             thought and without any supporting, hence not
             tenable, therefore, rejected and appeals are not
             admitted. On merit also these appeals are not
             maintenable."3.    After dismissing the appeal as not admitted the CIT(A) also
adjudicate the issue on merits and dismiss the appeal of the assessee by
a speaking order. Now before us, the assessee has raised the following
ground No. 1 for not condoning the delay which is common in both the
years, hence we will take up the matter from AY 2010-11 and the same
held as under: -"1.    On the facts and circumstances of the
             case and in law, the learned CIT(A) erred in not
             condoning delay in filing an appeal and thereby
             not admitting appeal holding that the submission
             of the appellant is general and without any
             supporting. Delay in filing an appeal being
             unintentional, delay should be condoned and
             appeal of the appellant should not be admitted."3ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 84.    Before us, the learned Counsel for the assessee contended that the
assessee wanted to pursue the alternative remedy undersection 264of
the Act and for this there was delay of 6 and half months in filing of appeal
before CIT(A). The learned Counsel for the assessee only stated that the
CIT(A) has not considered the reasons stated by assessee in tis
condonation petition filed along with form No. 35. The learned Counsel for
the assessee, in view of the above stated facts, the CIT(A) first rejected
this condonation petition and dismiss the appeal as not maintainable and
specifically passed the order on merits which he cannot do. According to
him, the appellate order is perverse and illegal. On the other hand, the
learned Senior DR has supported the order of CIT(A).5.    We have heard the rival contentions and gone through the facts of
the case. We find that the CIT(A) has dismissed the appeal in limine and
not maintenable by not condoning the delay. Further, in the present case
before us the CIT(A) has not condoned the delay but he as adjudicated
the issues on merits as is evident from the impugned appellate order. We
are of the view that in case CIT(A) chose not to condone the delay, he has
no business to adjudicate the appeal on merits. For this, we are of the
view that first of all, the appeal should be admitted for making a decision
on merits because the right to appeal is neither an absolute right nor an
ingredient of natural justice the principles of which must be followed in all
judicial and quasi judicial adjudications. The right to appeal is statutory
right and it can be circumscribed by the conditions in the grant. If the
statute gives a right to appeal upon certain conditions, it is upon fulfillment
of those conditions that the right becomes vested in and exercisable by
the appellant.Here the assessee's appeal is delayed as alleged by CIT(A)
and without admitting the appeal he has adjudicated the same on merits.
Once the appeal is not admitted nothing is pending before him. A
judgment of Hon'ble Bombay High Court (under the old Act of 1922) in the4ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 8


case ofCIT Vs. Mysore Iron & Steel Works(1949) 17 ITR 478 (Bom),
wherein it is held as under:"Now, the scheme underSections 30and31of
             the Act is fairly clear. An assessee has a
             statutory right to present an appeal within thirty
             days without any order being required from the
             Appellate Assistant Commissioner for admission
             of that appeal. But if the time prescribed expires,
             then that statutory right to present an appeal
             goes ; and an appeal can only be entertained
             provided it is admitted by the Appellate Assistant
             Commissioner      after   condemning      the    delay.
             Therefore before an appeal could be admitted in
             this case, an order from the Appellate Assistant
             Commissioner was requisite that the delay had
             been condoned, and it was only on such an order
             being made that the appeal could be entertained
             by the Appellate Assistant Commissioner. NowSection 31deals only with such appeals which
             are presented within the prescribed period or
             admitted after the delay has been condoned, and
             the procedurelaid down inSection 31with
             regard to the hearing of appeals only applies to
             such appeals. Therefore, in my opinion, when the
             Appellate Assistant Commissioner refused to
             condone the delay, there was no appeal before
             him which he could hear and dispose of as
             provided underSection 31of the Act.Section 33then gives the right of appeal to the assessee5ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 8


from an order made by the Appellate Assistant
Commissioner either underSection 28or underSection 31. Therefore the Legislature did not give
the right of appeal to the assessee against an
order    made    by   the   Appellate       Assistant
Commissioner underSection 30of the Act.Now Mr. Banaji has contended that in
refusing to condone the delay, the Appellate
Assistant Commissioner has really dismissed his
appeal and confirmed the order of assessment.
In my opinion, that is an entirely erroneous
contention because the Appellate Assistant
Commissioner can only confirm an assessment
and make an order of confirmation or dismissal of
the appeal provided the appeal is presented
within time or been admitted after condonation of
delay and is heard and disposed of on merits. In
this case we do not reach the stage ofSection 31at all. The appeal never came to be admitted,
and no question can possibly arise of an order
made by the Appellate Assistant Commissioner
confirming the assessment made by the Income-
tax Officer.Mr. Banaji has relied on two judgments of
the Patna High Court which, in my opinion, really
have no bearing on the facts before us. One is
Kunwarji Ananda v. Commissioner of Income-tax,
Bihar and Orissa (1). There a Full Bench of the
Patna High Court considered an order made by6ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 8


the Assistant Commissioner that the appeal did
not lie because it fell underSection 23(4)of the
oldIncome-tax Act; and the Court held that such
an order fell underSection 31of the old Act as it
was an order disposing of the appeal. Now, it is
important to note that in that case the appeal was
admitted. It was within time, and after it was
admitted, a preliminary issue was raised as to
whether the appeal lay as it fell underSection
23(4)of the oldIncome-tax Act. It was from the
order on the preliminary point that an appeal was
preferred to the Commissioner, and on those
facts that Court held that it was an order underSection 31of the old Act. But as I have pointed
out earlier, in the case before us there is no
question of the appeal being disposed of either
on the preliminary point or on merits, because
the appeal was never admitted.Then there is the case ofMaharani Gyan
Manjari Kuari v. Commissioner of Income-tax,
Bihar and Orissa(2). That was a case where the
assessee had failed to prefer an appeal in the
prescribed form to the Appellate Assistant
Commissioner of Income-tax, and the Appellate
Assistant Commissioner refused to admit the
appeal holding that the appeal was not in the
prescribed form. The Patna High Court merely
followed the earlier decision of their own Court to
which I have referred and came to the conclusion7ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 8


that the order made by the Appellate Assistant
Commissioner was an order underSection 31.
We have looked in vain through this judgment to
find any reason suggested why the order made
by     the   Appellate    Assistant        Commissioner
refusing to entertain the appeal because it was
not in proper form fell underSection 31of the old

Act. With respect to the Patna High Court, we

(1) (1931) I. L. R. 11 Pat. 187.(2) [1944] 12 I. T. R. 59.cannot accept that decision if the effect of the
decision is that even though an Appellate
Assistant Commissioner may refuse to entertain
an appeal, that order should be deemed to be an
order disposing of the appeal underSection 31as if the appeal had been admitted. But there is a
direct decision of the Allahabad High Court, and
that    is   reported    in       Shivnath    Prasad       v.Commissioner of Income-tax, Central and United
Provinces (1). Although the case was under the
old Act, it dealt with the very question with which
we are dealing now and there also the Assistant
Commissioner had refused to condone the delay
and the Allahabad High Court held that the order
made by the Assistant Commissioner was not
underSection 31but it was an order made underSection 30and, therefore, no appeal lay to the
Appellate Tribunal. We, with respect, entirely8ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 8


                        agree with the view taken by the Allahabad High
                        Court and also the reasoning on which that
                        decision is based.The result is that we must hold that there is no
                        appeal from the order of the Appellate Assistant
                        Commissioner refusing to condone the delay
                        underSection 30, subsection (2), of the Income-
                        tax Act."6.     In view ofthe above decisionof Hon'ble Bombay High Court, we
         are of the view that the CIT(A), once not admitted the appeal as barred by
         limitation, he should not have adjudicated on merits. The findings given by
         CIT(A) on merits will have no bearing on fresh adjudication by CIT(A), in
         the set aside appellate proceedings. In term of the above, we set aside
         the orders of the CIT(A) and remand the matter back to the file of CIT(A)
         for fresh adjudication on merits. We direct the CIT(A) accordingly. Both
         the appeals of assessee are allowed for statistical purposes.7.     In the result, both, the appeals of the assessee are allowed for
         statistical purposes.Order pronounced in the open court on 19-12-2018.Sd/-                                           Sd/-
        (जी. मंजनु ाथ /G MANJUNATHA)                  (महावीर स ह
                                                                िं /MAHAVIR SINGH)
(लेखा    दस्य / ACCOUNTANT MEMBER)                  (न्याययक   दस्य/ JUDICIAL MEMBER)मुिंबई, ददनािंक/ Mumbai, Dated: 19-12-2018
सदीप सरकार, व.निजी सधिव / Sudip Sarkar, Sr.PS9ITA s No . 2 81 6 & 2 81 8 / Mu m/ 2 01 8




     आदे श की प्रनिललपप अग्रेपिि/Copy of the Order forwarded to :1.   अपीलाथी / The Appellant2.   प्रत्यथी / The Respondent.3.   आयकर आयुक्त(अपील) / The CIT(A)4.   आयकर आयुक्त / CIT5.   ववभागीय प्रयतयनधि, आयकर अपीलीय अधिकरण, मुिंबई / DR, ITAT,
     Mumbai6.   गार्ड फाईल / Guard file.आदे शािसार/ BY ORDER,

           त्यावपत प्रयत //True Copy//

                                                      उप/सहायक पुंजीकार (Asstt.   Registrar)
                                                  आयकर अपीलीय अधिकरण, मुिंबई / ITAT, Mumbai