The main legal point established in the judgment is that unless the delay in filing the appeal had been condoned, the Tribunal had no jurisdiction to entertain the appeal.

Ramesh Kumar Datta, J.

Heard learned counsel for the appellant in both the appeals and learned counsel for the respondent-Revenue.

2. The appeals were admitted and as many as six substantial questions of law were framed at the time of admission in the decision of this Court. The third substantial question is in the following terms:

“Whether the learned Tribunal was correct in law in entertaining the appeal without considering the issue of limitation and without condoning the alleged delay?

3. In our view if the aforesaid question is answered in the negative then there would be no occasion to proceed with hearing the other substantial questions of law.

4. For the assessment year 1995-96 in relation to the assessee-appellant, the Deputy Commissioner of Income Tax, Special Range-III, Patna passed the order dated 31.3.1998 under Section 143(3) of the Income Tax Act, 1961. Aggrieved by the same the assessee filed an appeal being ITA No. 128/P/A-II/98-99 before the Commissioner of Income Tax (Appeal)-II, Patna which was allowed in part by order dated 8.2.2001. The assessee being aggrieved by the fact that the CIT (Appeal) having accepted the contention of the assessee on three aspects yet wrongly remitted the matter to the assessing authority on two of them and accordingly filed an appeal before the Income Tax Appellate Tribunal. The revenue also appealed against the order dated 8.2.2001 of the CIT (Appeal) challenging the findings of the CIT (Appeal) on the three aspects. Both the appeals were heard together by the Income Tax Appellate Tribunal, Patna Bench, Patna being ITA No. 154 (Pat)/2001 and ITA No. 267(Pat.)/2001 which by order dated 25.02.2002 allowed the appeal of the Revenue and dismissed the appeal of the assessee.

5. So far as the memo of appeal filed by the Revenue before the ITAT is concerned, admittedly it was filed with a delay of 12 days. From the records produced before us, it is not in dispute that an application for condonation of delay was also filed on behalf of the Department. From the copy of the notice issued to the assessee in the Revenue’s appeal, it is evident that the factum of delay was mentioned in the said notice. However, the admitted position is that no specific order condoning the delay in filing the appeal by the Revenue was passed.

6. In the aforesaid conspectus of facts, learned counsel for the appellant submits that since the appeal of the Revenue was beyond the period of limitation prescribed by the Income Tax Act and delay had not been condoned by the Tribunal, hence the final order passed by the Tribunal itself is without jurisdiction as in the absence of such condonation of delay, no appeal on behalf of the Revenue could be said to be pending before the Tribunal.

7. In support of the aforesaid stand learned counsel relies upon a decision of the Supreme Court in the case of Noharlal Verma v. District Cooperative Central Bank Limited, Jagdalpur: (2008) 14 SCC 445 relying upon paras 32 and 33 thereof which are in the following terms:-

“32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.

33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under:

“3. Bar of limitation.-(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.”

Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the defendant, respondent or opponent, the court or authority must dismis