1 IN HIGH COURT OF JUDICATURE AT MADRAS DATE : 23.09.2014 CORAM HONOURABLE MR. JUSTICE R.SUDHAKAR AND HONOURABLE MR. JUSTICE G.M.AKBAR ALI T.C.A. NOS. 283 TO 288 OF 2014 AND M.P. NOS. 1 OF 2014 M/s.Centre for Individual & Corporate Action (CICA) T-73, Anna Nagar Chennai 600 040. Appellant in all appeals - Vs - Asst. Commissioner of Income Tax Business Circle XIII Chennai. Respondent in all appeals Appeals filed against order dated 23.7.2012 passed by Income Tax Appellate Tribunal, 'C' Bench, Chennai, in ITA Nos.880 to 885/Mds/2012 for assessment years 1995-1996 to 2000-2001. For Appellant : Mr. M. P. Senthil Kumar For Respondents : Mr. J.Narayanasamy COMMON JUDGMENT (DELIVERED BY R. SUDHAKAR, J.) These appeals are preferred by assessee against order dated 23.7.2012 passed 2 by Income Tax Appellate Tribunal, 'C' Bench, Chennai, in ITA Nos.880 to 885/Mds/2012 for assessment years 1995-1996 to 2000-2001. 2. following substantial questions of law have been framed for consideration in these appeals :- a) Whether on facts and circumstances of case, Income Tax Appellate Tribunal was right in law in dismissing appeals filed by assessee as time barred? b) Whether on facts and in circumstances of case, Income Tax Appellate Tribunal was right in law in holding that deduction claimed by appellant u/s 40(b) of Income Tax Act, 1961 is not justifiable? c) Whether on facts and in circumstances of case, Income Tax Appellate Tribunal was right in law in holding that appellant is not entitled to make claim for deduction in remand assessment proceedings even if appellant is statutorily entitled to such claim to arrive at correct assessable income? 3. appellant/assessee is engaged in supply and training of manpower for corporate sector. appellant received professional charges for various technical services rendered by it for assessment years 1995-1996 to 2000-2001, in all six assessment years. assessment was completed under Section 143(3) r/w 147 of Income Tax Act by Assessing Officer and claim of expenditure at 98% of service charges was rejected and expenditure to extent of 20% was allowed. Aggrieved against said order, assessee preferred appeal to Commissioner of Income Tax (Appeals), who estimated assessee's 3 net profit at 25% of service charges received. On further appeal to Tribunal in ITA Nos.2164 and 2165/Mds/2003, 393 to 396/Mds/2003, Tribunal set aside order of Commissioner of Income Tax (Appeals) and directed Assessing Officer to assume net profit at 40% of gross professional receipts and not on all credit entries appearing in bank statement. 4. On remand, in course of assessment proceedings under Section 143(3) r/w 256, appellant claimed deduction of expenditure towards remuneration to partners and interest on capital accounts. Assessing Officer completed assessment vide order dated 31.01.2006 and arrived at net taxable income by treating 40% of total consulting charges as net profit of appellant and allowed interest on capital account of partners. However, Assessing Officer disallowed assessee's claim for expenditure towards payment of remuneration to partners under Section 40(b). 5. Aggrieved against above order, assessee preferred appeal to Commissioner of Income Tax (Appeals) against all orders disallowing assessee's claim for expenditure towards payment of remuneration to partners under Section 40(b). However, Commissioner of Income Tax (Appeals) dismissed appeals by order dated 29.08.2006, confirming order of Assessing Officer. 6. Aggrieved by said order of Commissioner of Income Tax (Appeals), 4 assessee filed six appeals before Tribunal with delay of 2053 days and Tribunal, vide common order dated 23.7.12, framed following two questions for consideration :- i) Whether condonation of 2053 days in filing appeals before Tribunal is justified? ii) Whether appellant is entitled to claim deduction under Section 40(b) as claimed? 7. Tribunal took up all matters together and after setting out details of claim and reasons as submitted by assessee for condonation of delay, rejected same holding that explanation submitted by assessee is not satisfactory and there are no sufficient particulars. Tribunal while holding that there is no ground for condonation of delay, further proceeded to dispose of appeals on merits and dismissed same. Having dismissed appeals of assessee on question of condonation of delay, further order of Tribunal dismissing appeals of assessee on merits is now challenged before this Courts by assessee by taking similar grounds as stated above. 8. Heard Mr.Senthil Kumar, learned counsel appearing for appellant/assessee and Mr.Narayanasamy, learned standing counsel appearing for respondent/Department. 9. net taxable income differs for each assessment year and this Court is not concerned with said aspect. Though three questions of law have been raised for consideration in these appeals, in view of order that is to be passed in this appeals, this 5 Court is not going into any of question of law at present time. 10. Even at very outset we find that procedure adopted by Tribunal is highly prejudicial to interest of appellant/assessee inasmuch as Tribunal having decided not to proceed with matter on ground of condonation of delay, cannot unilaterally decide appeals on merits, more so when appellant/assessee was not given proper opportunity to contest matter in main appeals on merits. order of Tribunal is also not in consonance with Section 253(5) of Income Tax Act. Section 253(5) of Income Tax Act mandates that appeal should be admitted before ever order is passed on merits. Once appeal itself is not entertained, question of going into merits of matter does not arise. We, therefore, find that order of Tribunal deciding appeals of assessee on merits, after dismissing appeal itself on question of delay, is error apparent on face of record and that order passed is without jurisdiction since, when there is no appeal, there is no question of deciding issue raised in appeal on merits. 11. above view of ours is fortified by decision of Gauhati High Court in case of Williamson Financial Services Ltd. - Vs Commissioner of Income Tax & Anr. (2003 (262) ITR 595). 12. In view of reasons above mentioned, we set aside order of Tribunal and 6 remand matters back to Tribunal for reconsideration. Accordingly, matters are allowed by way of remand to Tribunal. Consequently, connected miscellaneous petitions are closed. It is needless to add that while dealing with condonation of delay issue, Tribunal shall keep in mind proceedings which assessee first went through even before this order, which goes to show that assessee has been acting bona fide and diligently pursuing matter before appropriate forum. (R.S.J.) (G.M.A.J.) 23.09.2014 Index : Yes/No Internet : Yes/No GLN To 1. Income Tax Appellate Tribunal 'C' Bench, Chennai. 2. Asst. Commissioner of Income Tax Business Circle XIII Chennai. 7 R.SUDHAKAR, J. AND G.M.AKBAR ALI, J. GLN T.C. A. NOS.283 TO 288 OF 2014 23.09.2014 Centre for Individual & Corporate Action (CICA) v. Asst. Commissioner of Income-tax, Business Circle-XIII, Chennai