Appeal rejected due to delay and merger, Tribunal emphasizes substantial justice

Mayfair Builders And Developers. Versus Deputy Commissioner Of Income-tax, Circle - 4(3), Pune.

Mayfair Builders And Developers. Versus Deputy Commissioner Of Income-tax, Circle - 4(3), Pune. - ITD 114, 147, TTJ 115, 550, Issues Involved:
1. Maintainability of the appeal due to the merger of the Assessing Officer's order with the CIT's order u/s 264.
2. Jurisdiction and merits of the CIT's order u/s 264.
3. Condonation of delay in filing the appeal.
4. Decision on the appeal's merits.

Summary:

1. Maintainability of the Appeal:
The CIT(A) held the appeal as non-maintainable, stating that the order of the Assessing Officer had merged with the CIT's order u/s 264. The assessee argued that the appeal was filed before the application u/s 264 and was not admitted due to non-payment of taxes u/s 249(4)(a). The Bombay High Court decision in Manmala Exhibitors (257 ITR 563) was cited to argue that the CIT's order u/s 264 was without jurisdiction and bad in law ab initio.

2. Jurisdiction and Merits of the CIT's Order u/s 264:
The CIT(A) erred in holding that the CIT's order u/s 264 was on merits, whereas the application u/s 264 was not admitted due to limitation. The CIT rejected the petition u/s 264 on the grounds of delay and on merits, stating that the additions made were supported by evidence collected during the search.

3. Condonation of Delay:
The CIT(A) did not condone the delay in filing the appeal, despite the assessee being prevented by sufficient cause from filing within the prescribed time. The assessee paid the taxes on the undisclosed income and filed a fresh appeal with a request for condonation of delay, which was again rejected by the CIT(A) due to inordinate delay and lack of sufficient cause.

4. Decision on the Appeal's Merits:
The CIT(A) failed to decide the appeal on merits. The Tribunal noted that substantial justice should be preferred over technical considerations, citing the Supreme Court's decision in Mst. Katiji. The Tribunal directed the CIT(A) to examine whether there were sufficient reasons for the assessee's failure to comply with the provisions of section 249(4)(a) and, if so, to condone the delay and decide the appeal on merits.

Conclusion:
The Tribunal remitted the matter back to the CIT(A) to examine the reasons for non-compliance with section 249(4)(a) and, if justified, to condone the delay and hear the appeal on merits, emphasizing the preference for substantial justice over technical considerations. The appeal was partly allowed for statistical purposes.