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2014 (5) TMI 411 - CALCUTTA HIGH COURTRestoration of the appeal - Held that:- it is no doubt true that the appeal filed by the petitioner no.2 before the tribunal stood dismissed on the basis of an application filed in this regard. The Four Corners of the applications would reveal that a specific stand was taken by the petitioner no.2 that the appeal is incompetent having abated on the death of the proprietor. The tribunal recorded the abatement by relying upon the statement made by the petitioner no.2 in the said application. It is indeed true that the appeal was taken out by the petitioner no.2 and not by the deceased proprietor and, therefore, the recording of an abatement even on the basis of the application taken out in this regard is a mistake committed by the tribunal. The petitioner was advised that the demand upon a deceased proprietor would perish automatically after the constitution of the partnership firm which has a separate legal entity. In fact, on the aforesaid plea, the earlier writ petition was filed before this Court which stood dismissed with a categorical finding that mere conversion of the proprietorship concern into a partnership firm does not evaporate the liability of the erstwhile concern. The petitioner tried to take shelter under a mistaken advice and also deriving a clue from the correction made in an order passed in an earlier writ petition. Section 35C does not provide for condonation of delay in making out an application beyond the stipulated period of six months from the date of the order. When the statute has provided the maximum period of limitation, the tribunal cannot pass an order condoning the delay of more than the prescribed period in absence of any express power to do so. Equally the Court cannot direct the authority to act contrary to the law - Decided against assessee.
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