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Judgment
PER C.N. PRASAD, J.M.
This appeal is filed by the Assessee against the order of the Ld.CIT(Appeals)-NFAC, Delhi dated 05.02.2024 for the AY 2012-13 in dismissing the appeal of the assessee in limine on the ground that the appeal is filed beyond time and no reason has been given for the delayed filing.
Ld. Counsel for the assessee, at the outset, submitted that the assessment order was passed on 29.12.2019 u/s 143(3) r.w.s. 147 of the Act in the case of the assessee for the AY 2012-13 which was served on the assessee on 04.02.2019 and the assessee has filed appeal on 02.03.2020 and therefore there is no delay in filing of appeal as such. Ld. Counsel for the assessee referring to Form 35 explained that in Column 1C the assessee has clearly stated that the assessment order was served on 04.02.2020. However, the Ld.CIT(A) presumed that since the assessment order is dated 29.12.2019 the appeal was to be filed by 29.01.2020 and since the appeal was filed by the assessee on 02.03.2020 the Ld. CIT(A) presumed that the appeal is filed with a delay and the assessee has wrongly mentioned in column 14 of Form 35 that there is no delay in filing of appeal.
Heard rival contentions and verified the record before us. We find considerable merit in the submission of the Ld. Counsel for the assessee. The assessee has stated in Form 35 that the assessment order passed u/s 143(3) r.w.s. 147 of the Act was served on the assessee on 04.02.2020 and the appeal was filed on 02.03.2020 in which case there is no delay in filing of appeal by the assessee. The Ld. CIT(Appeals) presumption that since the assessment order was dated 29.12.2019 the said order was served on the assessee on the same day i.e. 29.12.2019 and therefore the appeal should have been filed by 29.01.2020 is only a presumption and without any contrary evidence brought on record. In the circumstances, we hold that there is no delay in filing of appeal before the Ld. CIT(Appeals) by the assessee and therefore this appeal is restored to the file of the Ld. CIT(A) who shall pass the order on merits after providing adequate opportunity to the assessee. We order accordingly.
In the result, appeal of the Assessee is allowed for statistical purpose.