TMI Blog2012 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... out considering the audited books of accounts of the assessee. 263 of the Act is not one which depends on contingency or guess work, but it should be actually an error either of fact or of law.CIT vs. Trustees of Anupam Charitable Trust (1986 - TMI - 25628 - RAJASTHAN High Court), Jai Kumar Kankaria vs. CIT (2000 -TMI - 14058 - CALCUTTA High Court) - ITA No. 1844 (Kol) of 2010 - - - Dated:- 6-1-2012 - Sri N.Vijayakumaran, Sri C.D. Rao, JJ. For the Appellant: /Sri Somnath Ghosh Sri R.K.Baul For the Respondent: /Sri M.S. Meena ORDER (C.D. Rao), Accountant Member : The appeal by the assessee is directed against the order dated 19.05.2008 of ld. C.I.T., Kolkata-II passed u/s. 263 of the Act for assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he I.T.A.T. On his proper advice, therefore, an application for withdrawal of the appeal, stating the above facts, was filed before the Tribunal and the prayer for withdrawal of the appeal was accepted by the Tribunal. Thereafter as per advice and guidance of the present lawyer, the assessee obtained a certified copy of the order of ld. C.I.T. u/s. 263 of the Act from the department on 22/9/2010 and the instant appeal was filed thereafter. It was stated by the assessee that in the above situation and circumstances, delay of 788 days had occurred in filing of the present appeal before the Tribunal. In support of the submission, the assessee also filed an Affidavit from Sri Kailash Kr. Yadav, an associate member of ICAI, who affirmed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to adopt a pragmatic and liberal approach while considering the petition for condonation of delay. We, therefore, respectfully relying upon the above decision of Hon ble Supreme Court and considering the facts of the case deem it proper to condone the delay of 788 days in respect of the appeal before us and admit the same for hearing on merits. 4. Now coming to the merit of the case, the assessee-company in response to notice u/s. 148 of the Act filed its return for the assessment year under consideration showing income of Rs.6,97,300/-. In course of assessment proceedings the assessee filed details of expenses and evidences thereof, which did not meet satisfaction of the ld. A.O. He, therefore, completed the assessment u/s. 144/147 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of non-production of any medical certificate rejected the prayer of the assessee and passed order u/s. 263 of the Act dated 19/5/2008 ex parte qua the assessee, cancelling the assessment order and directing the ld. A.O. to reframe the assessment by correcting the errors as stated in the order. Hence the assessee is in appeal before the Tribunal. 6. At the time of hearing before us, the learned counsel submitted that the ld. C.I.T. assumed jurisdiction u/s. 263 of the Act on the presumption that there was a difference of Rs.29,57,082/- between the closing stock of finished goods shown for the assessment year under consideration and the opening stock for the immediately subsequent assessment year 2001-02, which has resulted in an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is properly served and reasonable opportunity is afforded to the assessee. In this case, only once the case was fixed and the assessee in response filed an adjournment petition on the sickness of the person who was looking after the matter. However, the ld. C.I.T. violating the principles of audi alteram partem directed the ld. A.O. to reframe the assessment, which was against the settled position in law. 7. The ld. Departmental Representative, on the other hand, supported the order of the ld. C.I.T. He, however, submitted that he has no serious objection if the matter is sent back to the file of the ld. C.I.T. for fresh adjudication. 8. We have heard the parties and perused the material placed on record. There is no dispute to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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