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2014 (9) TMI 1212 - AT - Income TaxReopening of assessment u/s 147 - AO jurisdiction to issue notice - applicability of section 292B - HELD THAT:- Revenue has waited for the dismissal of the appeals by the ITAT and thereafter the revenue filed fresh appeals after delay of over 4 years. As a matter of fact even after receipt of the said order of the ITAT, the department has preferred appeal before the Hon’ble High Court of Calcutta, but the same has also been dismissed. The plea that dismissal of appeal by the tribunal and the Hon’ble High Court can give a person fresh cause of action circumventing the limitation period prescribed is not sustainable. Hence, now the department cannot come forward and claim that there is a mistake on the part of the revenue for not filing proper appeals 4 years ago. Hence, the delay of four year cannot be condoned on the facts and circumstances of the case. Already dismissed the assessee’s appeal on the count of lack of jurisdiction. The tribunal has also considered the argument that section 292B can not be invoked as fundamental infirmities are not curable u/s. 292 B of the Act. As a matter of fact, the condonation of delay in this case would tantamount to unsettle the earlier order of the tribunal, which is certainly not permissible as per law. Furthermore, it is noted that the Hon’ble High Court of Calcutta has also dismissed the appeal by the revenue against the ITAT order. Hence, our action of condoning the delay of 4 years will also have the effect of rendering the Hon’ble High Court’s order as infructuous. This will be gross indiscipline on our part. Moreover, the case laws as relied on by the ld. Counsel of the assessee support the case of the assessee In these circumstances, in our considered opinion on the facts and circumstances of the case of the case the delay in filing the appeal over of over 4 years cannot be condoned. Hence, the appeals filed by the revenue are dismissed in limine.
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