M/S. RUPAYAN UDYOG,C/O.SAJAL DAS,KOLKATA vs. CIT-XVII, KOLKATA, KOLKATA

At the outset itself, we note that there is a delay of 1124 days in filing the assessee’s appeal. The assessee has filed detailed affidavit explaining the reasons for the delay. From the perusal of the same, it is noted that the assessee was a partnership firm which was formed by Deed of Partnership dated 30.06.1999 and later got dissolved on 02.04.2007 by execution of Deed of Dissolution. Thereafter, the impugned order was passed on 05.06.2009 which was handed over to the ex-partner Shri Debasish Chakraborty on 19.06.2009 and since the partnership was dissolved and the partners were separated and could not be contacted and also because of advice of Shri Dilip Kumar Saha, FCA, the partner of assessee firm Shri Debasish Chakraborty did not pursue filing an appeal before the Tribunal. When the demand was raised by the Department and the Department attached the bank account of all the partners Shri Dilip Kr. Saha contacted Shri Soumitra Choudhury, Advocate on 2nd week of July, 2012, who in turn advised the assessee to file an appeal immediately along with the condonation petition on 17.07.2012 and thus, there was a delay of 1124 days which was caused because of the wrong advice given by the said Shri Dilip Kumar Saha, FCA. We have perused the reasons given in the affidavit and we are of the opinion that because of the wrong advice given by an AR the assessee’s right to appeal should not curtailed and assessee should not be penalized, so in the interest of justice and fair play, we condone the delay and admit this appeal for hearing.

At the outset itself, assailing the decision of the Ld. CIT exercising his revisional jurisdiction u/s. 263 of the Act the Ld. AR drew our attention the second paragraph of the impugned order which reads as under: “2. Thereafter, the AO vide letter dated 15.04.2008 has sent proposal u/s. 263 of the I. T. Act stating therein that in respect of 10 parties from whom advance of Rs.42,75,375/- was received, no verification could be made about the source of receipt. The AO further stated that in respect of 4 out of aforesaid 10 parties notices were not served and the Inspector returned the notices unserved and therefore, as per opinion of the AO, the assessment order is erroneous and prejudicial to the interest of revenue and accordingly required to be set aside to frame de novo assessment on receiving direction from the CIT.”

From a perusal of the aforesaid paragraph of the impugned order it is discerned that AO vide letter dated 15.04.2008 has sent a proposal to the Ld. CIT to exercise his jurisdiction u/s. 263 of the Act terming the assessment order as erroneous and prejudicial to the interest of revenue for the reason that the AO could not receive the verification in respect of the source of receipt from 10 parties from whom the assessee has taken advances to the tune of Rs.42,75,375/-. In the light of the aforesaid proposal from the AO, the Ld. CIT has exercised his jurisdiction u/s. 263 of the Act. A perusal of sec. 263 of the Act reads as under: “Revision of orders prejudicial to revenue. 263(1) The Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard…….”

In the result, the appeal by the assessee is allowed.