MOHAMED LAIK MOHAMMED JUMMAN QURESHI,BHIWANDI vs. ITO WD 1(2), KALYAN

The only issue in this appeal of assessee is against the order of the CIT(A) in dismissing the appeal of assessee on the ground of delay, whereas there was no delay according to assessee. Today when the case was called for hearing the assessee himself presented before us and drew our attention to ground no.1, which reads as under:- 1. On the facts and in law, the Hon. CIT(A) erred in dismissing the appeal on the ground of delay in filing of appeal. (a) without appreciating the fact that the appellant had never received the original assessment order framed u/s. 143(3) of the I.T Act 1961 and the appeal was filed on 22.08.2008, after obtaining from the AO certified copy of the asst. order on 23.07.2008, and therefore the appeal was filed within the time period allowed by Sec. 249(2) of the I.T Act 1961 and there was no delay in filing of appeal warranting dismissal.

At the outset, it is noticed that the CIT(A) has dismissed this appeal as unadmiited for the reason that there was delay in filing of appeal, but no condonation petition was filed by the assessee. But I find that the assessee now before has raised this ground, as reproduced above, that there is no delay. In these facts, I am of the view that even if there is delay the assessee should be allowed one more opportunity to file condonation petition and after that the CIT(A) can decide the issue of condonation of delay of this appeal. When this was confronted to the ld.Sr.DR, he fairly conceded that the issue can be remitted back to the file of the CIT(A) for one more opportunity to the assessee to file the condonation petition and then decide the issue afresh. Accordingly, I set aside the order of the CIT(A) and remand the matter back to him for allowing one more opportunity for filing of the condonation petition and then decide the issue of condonation and if delay is decided, then appeal of the assessee be also decided on merits. Accordingly, the appeal of the assessee is allowed for statistical purpose.

In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 01 -07-2016