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TMI Blog2018 (7) TMI 2050X X X X Extracts X X X X X X X X Extracts X X X X ..... order on the assessee. We are therefore inclined to set aside the impugned order of the learned Tribunal and remit the case back to the learned Tribunal for deciding the appeal on merits in accordance with law. - I.T.A.No.197/2017 - - - Dated:- 2-7-2018 - Dr. Vineet Kothari And Mrs. S.Sujatha, JJ. Mr.D.R.Ravishankar, Adv. for Appellant - Assessee Mr.Jeevan J.Neeralgi, Adv. for Respondents Revenue JUDGMENT Dr. Vineet Kothari 1. The Appellant-Assessee has filed this appeal against the order dated 23.12.2016 of the learned ITAT, A Bench, Bangalore, dismissing IT(TP)A No.839/Bang/2009 (Moles India Pvt. Ltd., vs. The Asst.Commissioner of Income Tax) for A.Y.2003-04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee that the order of the CIT (A) was not served upon him, it has to be presumed in the light of the noting of the Office of the CIT(A) that order of CIT(A) was duly served upon him in the month of August, 2008, when it was dispatched on 12.08.2008. Thus, the onus is upon the assessee to explain the delay in filing or appeal from August, 2008, but we do not find any plausible explanation in the application for condonation of delay in filing the appeal . 3. Learned counsel for the appellant-assessee Mr.D.R.Ravishankar has urged before the Court that there is no finding of the learned Tribunal that Docket No.EK3074467591IN dispatched on 12.08.2008 has ever delivered to the assessee, but only a presumption of service has been draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), which was sought to be challenged before the learned Tribunal. 5. Learned counsel for the Respondents-Revenue Mr.Jeevan J.Neeralgi however supported the impugned order. 6. Having heard the learned counsels, we are of the opinion that without the proof of the service of the impugned order of CIT (A) being placed on record before the learned Tribunal or the learned Tribunal having any other material to draw an inference of the actual service of the impugned order on the assessee, the learned Tribunal ought not to have dismissed the said appeal on the ground of delay. The Tribunal was not justified in placing negative burden on the assessee to establish the non-service of the order. It was for the Revenue to establi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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