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TMI Blog2012 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Tribunal. Accordingly, we condone the delay and remit the matter back to the file of the AO with the direction to pass order afresh. See The Collector, Land Acquisition vs. MST Katiji (1987 - TMI - 40082 - Supreme Court)– Decided in favor of assessee. Similar facts are involved in the case of Sh. Lala Ram Choudhary. Hence the same is also remitted back to file of A.O. - ITA No.1006 /JP/2011, ITA No.1058 /JP/2011 - - - Dated:- 3-1-2012 - SHRI R.K. GUPTA, SHRI N.L. KALRA, JJ. Appellants by : Shri Anil Sharma, AR Respondent by : Shri Vinod Johari, DR ORDER PER R.K. GUPTA, JM These two appeals filed different assessees are directed against separate orders of the CIT (A)-III, Jaipur, each dated 25.11.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has also made payment of professional fee, as agreed between the assessee and the AR. However, the AR i.e. Sh. Rahul Sharma, CA unfortunately could not satisfactorily attend before the AO Therefore, the assessment was completed under section 144 and thereby a huge demand was created against the assessee on technical grounds. On receipt of assessment order, the assessee contacted his AR and inquired about the exparte assessment and demand notice. The AR of the assessee explained to the assessee that he has filed reply dated 10.12.2008 before the AO and the AO acting unfairly has not taken the same on record and completed the assessment order ex-parte. The AR assured the assessee to take necessary steps to quash the assessment order and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipal limits and, therefore, is not liable to tax. It was also submitted that if it is liable to tax then capital gain has to be paid as per provisions of law, which has not been examined by AO or by the ld. CIT (A) as both the authorities have decided the case ex-parte. 4.1. In view of the above facts and circumstances of the case, the Ld. Counsel of the assessee requested that the delay in filing the appeal should be condoned and the matter be sent back to the file of the AO to decide the same afresh after affording reasonable opportunity of being heard. Reliance is placed on the decision of the Hon ble Supreme Court, in the case of The Collector, Land Acquisition vs. MST Katji, 167 ITR 471. He further placed reliance on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of The Collector, Land Acquisition vs. MST Katiji (supra). Similar view has been taken in the case of Gupta Rice Mills vs. Commissioner of Sales Tax (supra). In the case of Radha Krishna Rai vs. Allahabad Bank And Others (supra), the Hon ble Supreme Court, has observed that it is a case where the appellant was kept under the impression that the appellant had already been filed. When the appellant tried to contact his advocate Mr.M.M. Verma, to know about the progress of his case, he did not receive any satisfactory information. The appellant found that the progress of the matter was not satisfactory, he engaged another advocate, Mrs. Heera Jain. On enquiry by Mrs. Heera Jain, Advocate it came to her knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the paper book. Power of attorney was also executed by the assessee in time i.e. on 14.12.2009. However, Mr. Rahul Sharma, has not filed the appeal before the Tribunal. Therefore, it is clearly established that the CA of the assessee was not vigilant and the assessee was vigilant and he was folloing his case and when he came to know that his advocate is not attending his proceedings satisfactorily then he engaged another lawyer who filed the appeal before the Tribunal alongwith condonation application signed by the assessee. Copy of the affidavit on oath was also filed, which is placed on record. 6.2. Keeping in view the facts and circumstances of the case and taking into consideration the various cases discussed above, we found that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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