9911796707
TMI Blog2009 (10) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... y required for but failed to file appeal in time – appeal to be treated to be filed well in time – ITAT directed to decide the appeal on merit. - 152 of 2009 - - - Dated:- 28-10-2009 - Hon'ble V.K. Shukla, J. and Hon'ble Rajiv Sharma, J. Petitioner's Counsels - Rohit Nandan Shukla Respondent's Counsel - D.D. Chopra JUDGMENT Present Income Tax Appeal No. 152 of 2009 of Assessment Year 2004-05 has been filed against order 25.06.2009 passed by Income Tax Appellate Tribunal, Lucknow rejecting the appeal filed by the appellant against the order of Commissioner, Income Tax(Appeals)-II Lucknow dated 01.09.2007, being time barred. On presentation of the appeal in question following substantial question of law were found: "I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order was received on 24.09.2007 and thereafter second appeal memo, (Form No. 36 alongwith requisite enclosures) was handed over by Amarnath partner of M/S Samayadeen Amarnath Kaisarganj, Bahraich to Nisar Ahmad Khan, Advocate for filing appeal before Income Tax Appellate Tribunal, Lucknow. It has been stated that appellant was under bonafide impression that appeal in question must have been filed and when show cause notice under Section 271(1)(c) of the I.T. Act 1961 was issued for assessment year 2004-05 in the last week of March, 2009 then contact was made with concerned counsel and then it was revealed that concerned counsel did not file any appeal in question and original appellate order was returned back and thereafter belated app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay and therein plea was taken that well within time frame in the prescribed format memo of appeal has been handed over by Amarnath partner of M/S Samayadeen Amarnath Kaisarganj, Bahraich to Nisar Ahmad Khan, Advocate for filing appeal before Income Tax Appellate Tribunal, Lucknow and appellant remained under bona fide belief that said appeal in question must have been filed and it was only when in the last week of March, 2009 a show cause notice under Section 271(1)(c) of the I.T. Act 1961 was issued for assessment year 2004-05 and was received then qua the fate of appeal inquiries were made and then said legal advisor was unable to trace any paper relating to the appeal and could find only the original appellate order on 04.05.2009 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal in question could not be filed well within time, as such there was delay. To the said affidavit which has been filed there was no material to counter the averments mentioned therein, in this background once there was no counter material then assessee ought not to have penalized for such fault of his counsel who had been handed over entire papers after fulfilling each and every requisite formality required for but failed to file appeal in time. Income Tax Appellate Tribunal has not at all proceeded to mention that concerned Advocate has filed false affidavit only for the purposes of case, so as to create ground of sufficient cause being there. Once on said front doubt has not been raised then merely because appellant was not vigilant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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