High Court Of Madras
CIT vs. Five Star Marine Exports (P) Ltd.
Section 254(1)
Asst. Year 2001-02
K. Raviraja Pandian & M.M. Sundresh, JJ.
Tax Case (Appeal) No. 264 of 2009
20th April, 2009
Counsel appeared :
Mrs. Pushya Sitaraman, for the Appellant
JUDGMENT
K. RAVIRAJA PANDIAN, J. :
The appeal is at the instance of the Revenue against the order dt. 18th Sept., 2008 of the Tribunal, Madras ‘A’ Bench in ITA No. 814/Mad/2005 relating to the asst. yr. 2001-02 by formulating the following questions of law :
“1. Whether on the facts and circumstances of the case, the Tribunal was right in remitting the matter to the AO to await the outcome of the writ petition, without deciding whether the delay in filing the first appeal was condonable ?
2. Whether the Tribunal can straightaway go into the merits of the case, where the lower appellate authority has dismissed the appeal on grounds of delay and not on merits
2. The facts of the case are as follows : The assessee is engaged in the business of export of sea food. The AO has made an addition on account of DEPB expenses and donations made by the assessee in his assessment order dt. 29th Jan., 2004. Aggrieved by the order of the AO, the assessee filed an appeal before the CIT(A) with a delay of 255 days. The CIT(A) did not accept the reason given by the assessee at the time taken in pursuing a rectification petition before the AO, as he found that the assessee had taken a further period of six months even after the receipt of the rectification order. The appeal was dismissed on the ground of barred by limitation without going into the merits of the case. Aggrieved by the same, the assessee filed an appeal before the Tribunal, wherein it was brought to the notice of the Tribunal that the amendment brought about by the Taxation Laws (Amendment) Act, 2004 in the provisions of s. 80HHC has been challenged before various High Courts and the jurisdictional High Court has also admitted a writ petition in Writ Petn. No. 9031 of 2006 and pending for consideration. In that view of the matter, the Tribunal set aside the order of the CIT(A) and remitted back the matter to the AO 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 CIT(A) 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 AO with a direction to await for the decision of the High Court in the writ petition pending consideration.
3. We heard the argument of the learned counsel for the Revenue and perused the material on record.
4. As could be seen from the order of the Tribunal, it could be seen that only the Departmental Representative stated that a similar issue has been set aside by the Tribunal, Chennai Bench directing the AO to decide the issue in dispute after decision of the High Court in the aforesaid case. It is also further recorded by the Tribunal that the proposition was put up by both the parties and both the parties agreed that the issue in dispute has been set aside to the file of the AO to decide the same after final order on the issue is decided by the jurisdictional High Court.
5. Now learned counsel for the Revenue contended before us that in the appeal before the Tribunal, what was argued is the correctness of the order of the CIT(A) rejecting the application filed to condone the delay in filing the appeal. Hence, the Tribunal would have set aside the order of assessment. A similar issue in an appeal before the Tribunal against the AAC, who refused to condone the delay in presentation and also against the order refusing to condone the delay in revision was considered by the Division Bench of this Court in a pari materia provision in the Sales-tax Act in the case of State of Tamil Nadu vs. P.M. Madhavan Nair & Ors. (1982) 49 STC 244 wherein it was held by a Division Bench of this Court that refusal to 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 & Sons vs. CIT (1956) 29 ITR 607 (SC) wherein the three Judges Bench of the Supreme Court having regard to s. 30(2) of the old IT Act held that there was no sufficient reason for excusing delay and rejecting the appeal under s. 32 of the IT Act as time-barred is an order passed under s. 31 and an appeal lies from that order to the Tribunal and the Tribunal can well go into the merits of the case as the order of the CIT(A) would tantamount to confirming the order of assessment.
In view of the above said decisions, we do not find that the Tribunal has committed any error in setting aside the matter and remitting it back to the AO with a direction to pass final order as per the outcome of the decision of the High Court. Further, the learned Departmental Representative has agreed before the Tribunal that the issue similar to the one in dispute has been set aside to the file of the AO to decide the same after final order on the issue is decided by the jurisdictional High Court. As a matter of fact, the remittal order in a similar issue was brought to the notice of the Tribunal only by the Departmental Representative. In such a situation, we do not find any reason to entertain the appeal and the appeal is liable to dismissed and accordingly the same is dismissed.
[Citation : 322 ITR 218]
