9911796707
TMI Blog2024 (9) TMI 1735X X X X Extracts X X X X X X X X Extracts X X X X ..... ndum of appeal which is elaborate in essay form, but in sum and substance, it relates to only two issues; First there is objection by the assessee, that the appeal before the first appellate authority has been dismissed without adjudication on merits, on the ground that the appeal in form 35 has been filed belatedly and the assessee has not been able to show sufficient reasons or proper reasons for condoning the delay. The assessee has filed written submission to be considered for the hearing and the ld. DR is present for the hearing. 3. It is seen that on the issue relating to delay in filing form 35, the order u/s 143(1) is dated 26/10/2022, and as such the due date of filing form 35 was 25/11/2022 ( within 30 days ), but the same has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of his chosen Advocate by observing that :- "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everythin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law." 4.3 Respectfully, being enlightened by the observation of the Hon'ble court, we condone the delay, in filing of this appeal before the first appellate authority, due to the default committed by his appointed lawyer. 5. The second issue relates to the addition of Rs. 54,17,992/- to the returned income of Rs.3,54,460/-, by the CPC, Bangalore, in assessment u/s 143(1) of the Act 61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest Income 2,85,619.00 Any other Income 35,23,731.00 Any other Income 11,42,342.00 54,17,993.00 8. The claim of the assessee is that the above figures are duly reflected in audited profit and loss account (credit) and are recorded in regular books of accounts, and has already been considered for the purpose of arriving at the ultimate taxable profits, as returned by the assessee. 9. The tax auditor has wrongly mentioned the above figure in clause 16(d) of the audit particulars in form 3CD, which is actually meant for "Amounts not credited to the profit and loss account " 10. In the instant case the since the amounts are already credited to the profit and loss account for the year under appeal, the correct repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. 16. Technically, this matter should go back to the first appellate authority to take a decision on merits of the case, but considering the technical defects existing in the TAR itself, we are of the opinion that the matter needs verification by the assessing officer at the ground level with respect to the audited accounts uploaded for the year under appeal, in consultation with the figures contained in the return in ITR - 5, supported by books of accounts vis a vis the contents of the TAR existing in the portal, and all these enquiry and verification can only be done by the AO. 17. As such in the interest of justice, and to avoid unnecessary litigation, we think fit to remand the matter back to the files of the AO, for fresh adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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