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2014 (7) TMI 42 - CALCUTTA HIGH COURTEffective date of passing assessment order - Bar of limitation – Demand Notice served after 47 of expiry of limitation alognwith the copy of order - Whether the order dated 31st December, 2008 could be said to have been passed on 31st December, 2008 when the demand notice together with a copy of the order was served after 47 days – Held that:- The appellate authority cannot be expected to dispose of an appeal without looking into the assessment records - Had the appellate authority relied upon any independent enquiry or the result of any such enquiry, then it would have been incumbent upon the appellate authority to inform the assessee about the result of such enquiry so as to afford an opportunity to the assessee to make his submission with regard thereto - An appellate court cannot be prevented from perusing the lower court records - It is a strange submission to make that the lower court records could not have been perused without giving an opportunity to the assessee - Tribunal was not taking evidence of the matter as a Court at the first instance would do. A period of 47 days’ time is not time long enough which can even make anyone suspicious as regards the correctness of the date of the order - the presumption arising out of clause (e) of Section 114 proves the fact that the order was passed on 31st December, 2008 - The same presumption once again would apply to the order dated 13th November, 2009 passed by the CIT (A) - There is no reason to even entertain any doubt as regards the existence of the file including the order dated 31st December, 2008 - There is equally no reason to doubt that the assessment order was passed on 31st December, 2008 – thus, the order of the Tribunal is set aside – Decided in favour of revenue.
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