TMI Blog1995 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to come to the conclusion that the assessee had deliberately concealed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure "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 memo of appeal on the ground of bar of limitation (annexure " D "). The objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciation 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 question specifically. In the circumstances, we find that the question of tenability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of law which need to be referred : " (1) Whether the Tribunal has erred in law in ignoring the objection in regard to the maintainability of appeal and whether the Tribunal has erred in accepting the fresh memorandum of appeal presented beyond the period of limitation and deciding the appeal on merits ? (2) Whether the Tribunal has erred in reaching the conclusion about deemed concealment of income to the extent of Rs. 77,507 in the facts and circumstances of the case ? " We are thus not satisfied with the correctness of the rejection of the Appellate Tribunal and require the Appellate Tribunal to state the case under section 256(2) of the Act and to refer the aforesaid questions of law to this court. This reference application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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