1989 (4) TMI 135

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....." 2. We have heard both the sides. In the impugned order of the CIT(A), the appeal has been noted to be time barred. He gave the assessee opportunity to explain for the delay. The CIT(A) considered the explanation of the assessee which he found to be not satisfactory. He found that he cannot condone the delay in filing the appeal. The appeal by the assessee was dismissed, as time barred. Hence, this appeal by the assessee. 3. But in the grounds of appeal before us, the assessee has not challenged the order of the CIT(A), dismissing the appeal by the assessee in limine. The assessee has on forward and in disallowing certain expenses. Thus, from the facts available, it is seen that the dismissal of the appeal as time barred has not been ch....

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....d after the limitation pried. In that situation, the appellate authority can proceed to dispose of the appeal by the assessee on merits. But if the first appellate authority declined to admit an appeal, an order is passed as such declining the appeal to be admitted as barred by time. But this order declining to admit an appeal barred by time is not appealable before the Tribunal as spelled out by s. 253(1). The effect of such an order of the first appellate authority would directly amount to confirming the assessment order in toto. If the assessment order could be deemed to have been affirmed by the Act of first appellate authority declining to admit the appeal as time barred, then the assessment order is pursuance thereof would be appealab....

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.... Act. It was held amongst other things that an appellate order may not, directly and by itself, confirm or reduce or enhance or annual an assessment and may yet dispose of the appeal and if it does so, it is immaterial whether the ground is a finding that the appeal is barred by limitation or a finding that the case is not a fit one for extension of time or both. Thus, it could be said that an order rejecting an appeal on the ground of limitation, after it has been admitted, is the order which can be passed under s. 250, though there was no consideration of the merits of the assessment by the CIT(A) in the case of the present assessee before us. 6. From the facts available, it is sent hat the CIT(A) had admitted the appeal of the assessee ....