ORDER

Per C.M.Garg,JM

This is an appeal filed by the assessee against the order of the CIT(A),1, Bhubaneswar dated 10.2.2016 for the assessment year 2010-11 in the matter of assessment u/s.143(3) of the Act.

2. The appeal filed by the assessee is time barred by 1239 days. The assessee has filed condonation petition supported by affidavit for condoning the delay in filing the appeal. In the petition, it is stated as under:

“ 1. The appeal against the Assessment Order passed U/s 143(3) of The I.T.Act,1961 dated 04.03.2013 was filed by the appellant on 25.02.2014 before The Commissioner of Income Tax (Appeal)-l, Bhubaneswar.

2. During the course of hearing of the subject appeal, the Ld. Assessing Officer had issued Notice U/s 148 of The I.T. Act for impugned assessment year to reassess the income of the appellant. The matter was brought to the notice of the Ld. CIT(A)-1 and the appellant was advised that the grounds of appeal raised in the subject appeal against the order U/s 143(3) dated 04.03.2013 be raised in the appeal against the order to be passed U/s 147 of The I.T.Act,1961 and treated the appeal as infructuous and dismissed the same vide order dated 10.02.2016.

3. As the appeal was treated as infructuous and accordingly dismissed by Ld. Commissioner of Income Tax (Appeals)-l, the appellant did not file appeal against the subject appellate order before The Income Tax Appellate Tribunal, Cuttack Bench with a bonafide belief that the issues raised in the appeal shall be taken up in the appeal to be filed against the order to be passed U/s 147/143(3) of The I.T.Act,1961.

4. The Assessment Order U/s 143(3)/147 pursuant to Notice issued U/s 148 was passed on 30.03.2016 which was received by the appellant on 31.03.2016 and the appellant filed the appeal against such order on 19.04.2016 before the Commissioner of Income Tax (Appeals)-l, Bhubaneswar raising the grounds of appeals as were raised in the appeal against order dated 04.03.2013 as well as grounds of appeal arising out of order U/s 143(3)/147 dated 30.03.2016.

5. The appellate order against the Order U/s 143(3)/147 was passed on 28.08.2019 by The Commissioner of Income Tax(Appeals)-l which was received by the Appellant on 02.09.2019. However, The Ld. CIT(A)-1 has considered the issues raised in the Assessment order passed U/s 143(3)/147 observing that the initial assessment order U/s 143(3) dated 04.03.2013 ceases to be operative. (Copy of Appellate Order enclosed)

6. The Honorable Bench in it's Order dated 03.01.2018 in ITA No.444/CTK/2016 has dismissed the appeals of M/s Rajdhani Systems & Estates (P) Ltd., a sister concern of the appellant without adjudicating the grounds of appeals observing that the grounds raised by the appellant are not arising out of the Assessment Order Passed U/s 143*(3)/147 dated 28.8.2014 being not maintainable.

7. Now being advised, the appellant is filling the appeal against the appellate order dtd 10.2.2016 arising out of assessment order u/s.143(3) dated 4.3.2013.

8. An affidavit duly notarized by the director of the appellant for condonation of delay is enclosed.’

3. At the time of hearing, ld A.R. of the assessee reiterated the submissions made in the condonation petition and prayed for condoning the delay, which was opposed by ld D.R.

4. After considering the rival submissions, we are satisfied that the assessee was prevented by sufficient cause in filing the appeal delay before the Tribunal. The Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji (1987) 167 ITR 471 has held that there can be no presumption of deliberateness or negligence or mala fides in case of delay, because litigants run a serious risk without any benefit by the delay. The judiciary is respected not for legalizing injustice on technical grounds but for removing injustice. In this case, the delay was occurred due to the fact that the assessee was running before the Income Tax Department in the matter of assessment u/s.143(3) as well as order passed ag