Per Sanjay Arora, AM: This is a set of two Appeals by the Assessee, directed against separate Orders by the Commissioner of Income Tax (Appeals)-5, Ludhiana (CIT(A) for short) of even date, i.e., 22.12.2017, dismissing the assessees appeals in limine contesting his assessment u/s. 143(3) of the Income Tax Act, 1961 ( the hereinafter) and levy of penalty u/s. 271(1)(b) of the for the Assessment Year (AY) 2013-14.

2. The facts of the case in both the case being similar, the two were taken for hearing together and, accordingly, heard together, and are being disposed of vide a common order. ITA Nos. 94 & 95/Asr/2018 (AY 2013-14) Ashwani Singh Thakur v. Dy CIT 2

3.1 To begin with, the operating part of the impugned orders, which is the same for both the appeals, i.e., except for the date/s, reads as under: 2. As mentioned in theNS-51 by the AO, the order/notice of demand in this case was served on the assessee on 15.02.2016 (26.5.2016) and the Appeal as per Section 249(2) of the I.T. Act, was required to be filed within 30 days of service of notice of demand. Further as per section 249(3), the appeal could have been admitted after expiry if this period of the appellant had sufficient cause for not presenting the appeal within the prescribed time. However, in the present case no application for condonation of delay has been filed along with the appeal memo explaining the reasons for delay. No such application has been filed lateron also explaining the delay in filing the appeal, even after repeated notices sent by this office. To sum up, it is apparent that the assessee did not file the appeal in time and no sufficient cause has been shown, the appeal is therefore, not maintainable being time barred. Hence, this is liable to be dismissed as non-maintainable. [the date in bracket is in respect of penalty appeal]

3.2 The facts leading to the instant appeals, though broadly similar for both the appeals, shall be recounted, separately for each year. In respect of the appeal against the levy of penalty u/s. 271(1)(b), the assessees case, as set up before me, is that the delay in the filing the appeal before the ld. CIT(A) was occasioned by the wrong filing of the appeal in the first instance before the Commissioner of Income Tax (Appeals), Jammu on 24.6.2016, i.e., in time, upon receipt of the penalty order dated 26.5.2016 on that date itself. The acknowledgement of the said filing, which is by way of e-filing, forms part of the record (PB pg. 7). This was in view of a bona fide belief that the order appealed against being passed by the Jt. CIT, Central Circle, Jammu, it was appealable before the Appellate Commissioner at Jammu. Later, on realizing the mistake, the appeal was filed with the jurisdictional Commissioner, i.e., the CIT(A). Further, the reason for the delayed filing, i.e., on 22.08.2016, is mentioned in Form 35 itself, adverting to column 15 thereof, i.e., the column specifically inquiring of the reasons for delay, if any, in filing the appeal (PB pg. 12). Though, therefore, admittedly no application for the condonation of the delay was filed, the reason/s for the delay is communicated in ITA Nos. 94 & 95/Asr/2018 (AY 2013-14) Ashwani Singh Thakur v. Dy CIT 3 the appeal memo itself, and which are also without doubt genuine, so that the same merited acceptance. The ld. counsel, Sh. Bhagat, on being asked about the appeal number (not mentioned in the acknowledgement form) as well as the status of the appeal filed before the Appellate Commissioner at Jammu, would state that the said appeal has since been transferred thereby to the office of the ld. CIT(A).

4. The assessee has presented the appeal, albeit before the non-jurisdictional first appellate authority, in time. The reason appears genuine in-as-much as the order impugned is by an authority at Jammu. No mala fides could under the circumstances be even otherwise ordinarily attributed. In fact, the assessee has, even as observed during hearing, itself complicated matters by filing a fresh appeal before the jurisdictional Appellate Commissioner, i.e., instead of requesting the non-jurisdictional Commissioner to transfer the appeal, already filed in time, to the former. This, though, only reflects naivety. Again, the said reason/s for the delay, which is stated in the appropriate column provided in the appeal form itself, should normally be accompanied by a sworn affidavit. So, however, the same could be called for and, besides, the appeal forms itself contains verification. The said mistake/s cannot in any case be regarded as fatal, so as to destroy or obliterate the assessees right to appeal. In fact, these are, as apparent, not at the end of the assessee, but by his counsel/s, and which therefore could not even otherwise cause any prejudice to the assessee (refer: Concord of India Insurance Co. Ltd. v. Nirmala Devi and Ors. [1979] 118 ITR 507 (SC)).

5. In view of the foregoing, therefore, the matter, setting aside the impugned order, is restored back to the file of the ld. CIT(A) to consider the assessees application for condonation of delay on merits, and proceed accordingly. He may at his option, seek such clarification or substantiation in the matter, including or ITA Nos. 94 & 95/Asr/2018 (AY 2013-14) Ashwani Singh Thakur v. Dy CIT 4 causing such verification as he may deem fit and proper for the purpose. The appeal transferred to him by the Appellate Commissioner at Jammu would also need to be, in any case, disposed, as two appeals cannot lie against one order.

6. The second appeal (in ITA No. 94/Asr/2018) is in respect of quantum proceedings, which has again been dismissed as not maintainable on account of being barred by time. The assessees case is that the ld. CIT(A) is wrong in stating that no condonation application had been filed, and toward which he furnishes a copy of condonation application dated 28.3.2016, duly receipted on 08.4.2016, i.e., the date of the filing of the appeal with the office of the ld. CIT(A), by the said office (PB pg. 10). The same states the delay to be on account of ill health, and is accompanied by a medical certificate from Government Medical College Hospital, Jammu (PB pg. 11). The same, furnished during hearing, is taken on record. The matter, accordingly, as in ITA No. 95/Asr/2018, is, setting aside the impugned order, restored to the file of the ld. CIT(A) for a decision on merits of the assessees condonation application and, where admitted, of the appeal itself.

7. I decide accordingly.

8. In the result, both the appeals are allowed for statistical purposes. Order pronounced in the open court on May 28, 2019 Sd/- (Sanjay Arora) Accountant Member Date: 28.05.2019 /GP/Sr. Ps. Copy of the order forwarded to: (1) The Appellant: Ashwani Singh Thakur, 61-D, D/C Gandhi Nagar, Jammu (2) The Respondent: The Deputy Commissioner of Income Tax, Central Circle, Jammu (3) The CIT(Appeals)-5, Ludhiana ITA Nos. 94 & 95/Asr/2018 (AY 2013-14) Ashwani Singh Thakur v. Dy CIT 5 (4) The CIT concerned (5) The Sr. DR, I.T.A.T True Copy By Order