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TMI Blog2019 (5) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... longwith certificate issued by the then advocate before the CIT(A) which has not been appreciated in right perspective. Therefore, considering the totality of facts, deem it appropriate to set aside this case back to the file of the CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. - ITA No. 17/Jodh/2019 And Stay Application No. 01/Jodh/2019 - - - Dated:- 3-5-2019 - SHRI N. K. SAINI, VICE PRESIDENT (SMC) For The Revenue : Sh. P.K. Singi, DR For The Assessee : Sh Suresh Ojha, Advocate ORDER PER N. K. SAINI, V.P. The appeal by the assessee is directed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of order of Hon ble Tribunal. 8. Without prejudice the Income Tax Officer should not have calculated the Income as Capital Gain and Commissioner of Income Tax (Appeals) should not have confirm because the amount of consideration was received earlier and possession thereof was given on 24th August 1999 as such the Capital Gain Tax is not attracted in these facts in circumstances. 3. The main grievance of the assessee vide ground No. 4 relates to the dismissal of the appeal in limine. The facts of the case in brief are that the Assessing Officer on the basis of information received came to know that the assessee was enjoying the taxable income from capital gains for the year under consideration but ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d within the allowed time. 3. I carefully considered the condonation delay application I find that there was no genuine cause which prevent the appellant to file the appeal in time. Therefore I rejected the condonation delay petition and the appeal is dismissed at admission stage. 5. Now, the assessee is in appeal. The Ld. counsel for the assessee furnished the written submissions stating therein as under:- It is stated that one of the issue involved in the appeal is in respect of rejection of appeal in Limini i.e. out of limitation. In this respect I want to submit that the assessee is illiterate person and only knows how to put signature somehow. The appeal in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only. I again want to submit that the date of service is 15.9.2016 and the date of submission of appeal in hard copy was 20.4.2017, therefore, the delay is only 217 days and not 740 days. The copy of form no 35 is at pare 4 5 of the paper book. The copy of acknowledgement of receipt is at page 6 which was dated 26.10.2018. The fact and evidence adduced by the assessee before the Commissioner of Income Tax (Appeals) establish that there is/ was no ignorance of the assessee and the delay is on account of mistake on the part of the then Advocate due to which the assessee was prevented by reasonable cause. 6. Reliance was placed on the following case laws:- i) ITO Vs. Golabdass Stores, 69 TTJ 474 (ITAT Jodhp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to deposit such a huge demand. 6. That an appeal has been preferred by me against the order of the C.I.T.(A), Jaipur-3 before the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur which is still pending. 7. That in case the stay is granted; I will submit the security or will obey the order of the Hon ble Bench. What has been stated above is true to the best of my knowledge and belief. Nothing has been concealed. So God may help me. Sd/- Deponent Dated. 0.1.2009 (Mahnoo Khan) 8. In his rival submissions, the Ld. Sr.DR supported the impugned order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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