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2016 (12) TMI 477 - GUJARAT HIGH COURTMaintainability of appeal - condonation of delay - Held that: - learned Commissioner (Appeals) did not accept the case on behalf of the appellant that they received OIA on 27.08.2012 merely on presumption and assumption and on surmises and conjectures. The learned Commissioner (Appeals) has observed that as the OIO was dispatched by Department and sent through RPAD on 25.07.2012 and therefore, considering the period of maximum 10 days as reasonable period for reaching OIO from the date of dispatch from the postal department to the factory of the appellant, the OIO ought to have been reached the appellant latest by 04.08.2012. Therefore, learned Commissioner (Appeals) treated and considered the starting point of limitation from 04.08.2012. The aforesaid finding cannot be sustained for the simple reason that the starting point of limitation is considered merely on presumption and assumption. The learned Commissioner (Appeals) has considered the date of dispatched of the OIO but has not considered in fact on which date the appellant received the copy of OIO. If according to department OIO was sent through RPAD, in that case, department must have received acknowledgment receipt with the signature and seal of the company. The Commissioner (Appeals) could have and ought to have called for the acknowledgment receipt of the RPAD to ascertain on which date the appellant / assessee received the copy of the OIO. The acknowledgment receipt of the RPAD is always with the department. Therefore, department was required to produce the cogent reason to prove the only date of receipt of OIO by the appellantassessee. The impugned order passed by the learned Commissioner (Appeals) confirmed by the learned Tribunal cannot be sustained and the matter is required to be remanded to the learned Commissioner (Appeals) to pass appropriate order on the aspect of condonation of delay afresh and in light of the observations made herein above. It will be open for the learned Commissioner (Appeals) to call for the necessary particulars from the department with respect to exact date of receipt of OIO by the appellant either from acknowledgment receipt of RPAD and / or from any other documents such as inward register etc. - appeal allowed by way of remand.
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