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An appeal before the Commissioner (Appeals) shall ordinarily be presented within thirty days of the order of assessment, but the Appellate Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period.

In the case of Mela Ram & Sons v CIT (29ITR607) the appeal against the assessment was out of time by 19 days. The appeal was posted for hearing and a notice was issued.

At the hearing, the Department took the objection that the appeals were presented out of time, and were therefore liable to be dismissed. The assessee prayed for condonation of the delay in view of certain excep-
tional circumstances preventing it from presenting the appeals in time.

The Appellate Commissioner held that there was not sufficient ground for condoning the delay, and rejected them in limine. Both the Tribunal and the High Court upheld the order of the lower authorities.

It was contended before the Supreme Court that any appeal which is barred by limitation cannot be considered as an appeal properly presented under section 30 of the Indian Income-tax Act, 1922.

This court rejected that contention observing:

” If an appeal is not presented within that time (within the prescribed time) does that cease to be an appeal as provided under section 30(1)? It is well-established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in section 30(2) it is liable to be dismissed in limine. ”

In the similar manner an order rejecting the appeal in limine for non-compliance with the provisions of section 249(4) for not depositing the requisite amount, disposes of the appeal presented before the appellate authority. Such an order comes within the purview of section 250 of the Act and is appealable to the Tribunal under section 253 of the Act. In other words such appeals though may be suffering from some defects remain appealable instead and need to admitted as otherwise any omission therein or any fatality attached to it is really of academic interest only.

The Delhi High Court facing a similar such situation in the case of Rajpal & CO. v. CIT (250ITR832). In this case an authorised person did not sign the Form 35. To this the Commissioner dismissed the appeal and the Tribunal followed suit in not entertaining the appeal and did not went into the merits of the case altogether.

Following the Apex Court ruling in Mela Ram & Sons the High Court directed the Tribunal to hear the appeal on merits without attaching any importance as to whether the first appeal was competent and entertainable or not. The Court found the question as only of academic interest.

In an appeal filed by the assessee in the case of Rai Shri Krishna Ji Vs. Commissioner of Income-tax (45ITR612) in the memorandum of appeal presented to the Tribunal, the assessee impleaded the Commissioner of Income-tax as the respondent instead of the Income-tax Office. Rule 13 of the Appellate Tribunal Rules, 1963 talk of the respondent in an appeal by an assessee. It reads as follows:

“ In an appeal by an assessee under sub-section (1) of section 253 the Income-tax Officer concerned shall be made a respondent to the appeal.”

The Allahabad High Court held that the object of courts is to decide the rights of parties and not to punish them for mistakes that they make in the conduct of their cases by deciding otherwise than in accordance with their rights and that, if the error or mistake is not fraudulent or intended to overreach the court, amendment should be allowed in order to rectify the mistake and, if that is done, it is not a matter of favour or grace, but what is required by the interest of justice.

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