1995 (12) TMI 58

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....ng to deal with the appeal on merits without deciding the objection of the assessee regarding validity and maintainability of appeal ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law in accepting the revised memo of appeal as a valid appeal when the same was admittedly filed beyond the period of limitation ? (3) Whether, on the facts and in the circumstances of the case, there was any material for the Tribunal to hold that the assessee wrote off the debit balance of the transportation account of Rs. 1,12,030 including impugned item of Rs. 77,507 with intention to conceal the income ? (4) Whether, on the facts and in the circumstances of the case, there was any evidence for the Tribunal ....

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....1982, the appeal was allowed partly. Penalty was reduced to Rs. 81,183 (annexure "B"). The Commissioner of Income-tax filed second appeal before the Tribunal on April 8, 1983, urging only a solitary ground. The appeal was registered as 358/IND of 1983. The copy of the memorandum of appeal is annexure " C ". When the appeal came up for hearing on February 17, 1986, the applicant raised preliminary objections against the maintainability of the appeal. The arguments were heard, but no orders were passed to the knowledge of the applicant. Thereafter, the applicant received notice of a revised memorandum of appeal, filed by the Commissioner of Income-tax to the Tribunal on March 7, 1986. The applicant then filed objections against the revised me....

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....f the Tribunal. He further submitted that questions Nos. 3 and 4 are based on appreciation of facts and as such, they also do not arise out of the order as questions of law. We proceed to consider the worth of the submissions urged before us. It is an undisputed position that the objection against tenability of the appeal as initially presented was raised and thereafter the Commissioner of Income-tax filed the revised memorandum of appeal of which notice was issued to the applicant-assessee. In this background, the Tribunal was required to consider whether the revised memo of appeal could cure the defect and make the appeal tenable in law. The Tribunal was not right in abdicating its legal obligation by refusing to answer this questio....