TMI Blog2021 (10) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for leading additional evidences submitted by other evidences as mentioned by the assessee in above para before the erstwhile CIT(A) on 26/6/2019 but all these documents escaped the attention of NFAC, Delhi while deciding the appeal of the assessee because of that the rights of the assessee stand prejudiced. Considering the totality of facts and circumstances of the case and in the interest of principles of natural justice, we restore the matter back to the A.O. with direction to decide the appeal afresh - Appeal of the assessee is allowed for statistical purposes only. - ITA No. 54 And 55/JP/2021 - - - Dated:- 13-10-2021 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Akshay Shah (CA) For the Revenue : Shri Aashish Nehra (Addl. CIT-DR) ORDER PER: SANDEEP GOSAIN, J.M. Both these appeals have been filed by the assessee against the separate orders of the ld. CIT(A), National Faceless Appeal Centre (NFAC) Delhi both dated 15/03/2021 for the A.Y. 2009-10. The grounds taken by the assessee in both these appeals are as under: Grounds of ITA 54/JP/2021 for the A.Y. 2009-10 1. That the subject order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, the ld. CIT(A) failed to appreciate that penalty proceedings are separate and distinct from the assessment proceedings and any additions/enhancements made in the assessment does not ipso-facto warrant levy of penalty. 5. That the appellant craves right to amend, add, delete or withdraw any of the grounds of appeal either before or at the time of hearing of this appeal. 2. The hearing of the appeals was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. 3. Firstly, we take ITA No. 543/JP/2021 for the A.Y. 2008-10 for deciding the appeals. 4. In this appeal, there is delay of 48 days in filing the present appeal. It was submitted by the ld AR that there was no malafide or deliberate delay in filing the present appeal and in the interest of substantial justice, the delay in filing the present appeal may be condoned and the appeal be admitted for adjudication. It was further submitted that there is no prejudice which will be caused to the department as the assessee has already moved an application for settlement of present dispute and payment of taxes. In support, reliance was placed on the Hon ble Delhi High Court s decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Another principle laid down by the Hon ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It was also held by the Hon ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and it does not stand to benefit by resorting to such delay more so considering the fact that it has applied for settlement of present dispute and payment of appropriate taxes. Therefore, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order of assessment was passed ex prate U/s 147/144 of the Act. Before the ld. CIT(A), in the appellate proceedings, the only plea taken by the assessee relates to challenging the jurisdiction of the A.O. on the ground that the notice was not served on correct address. Further nothing was submitted on merits itself, thus, the ld. CIT(A) while taking into consideration that notice was issued on the last available address, but the Revenue had dismissed the appeal of the assessee. Now before us, the ld AR has reiterated the same arguments as were raised before the ld. CIT(A) and also drawn our attention towards Form No. 35 filed before the ld. CIT(A) for filing the appeal against the order of A.O. The ld. AR has also drawn our attention to the paper book which contains copy of submissions filed before the NFAC, Delhi dated 31/1/2021, copy of submissions filed before erstwhile CIT(A)-1, Jaipur dated 26/06/2019, copy of additional evidence filed before erstwhile CIT(A)-1, Jaipur under Rule 46A dated 26/06/2019, purchase agreement of plot No. D.B.-77, Siddharth Nagar, Jaipur, power of attorney executed in the name of the assessee, sale deed of plot No. D.B.-77, Siddharth Nagar, Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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