Deepak Bajaj , Kolkata V. ITO, Ward 40(1), Kolkata

ITA 569/KOL/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1218 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMITAVA BHATTACHARYA
• Keywords: Revision of order; Depreciation; Period of limitation; Reasonable cause; Time period of passing order; Condonation of delay; Reassessment proceedings; TDS; Set aside
• Section: 147; 148; 143(3); 143(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] I.T.A. No. 569/Kol/2021 Assessment Year : 2009-10 Deepak Bajaj (PAN: AEEPB 5525 K) Vs. ITO, Ward-40(1), Kolkata Appellant Respondent Date of Hearing 05.05.2022 Date of Pronouncement 30.06.2022 For the Appellant Shri Dilip Chatterjee, A.R For the Respondent Shri Amitava Bhattacharya, CITDR ORDER Per Shri Rajesh Kumar, AM: This is an appeal preferred by the assessee against the order of the Principal Commissioner of Income Tax-14, Kolkata [hereinafter referred to as ‘PCIT’] passed u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as the Act) dated 10.03.2016 for the assessment year 2009-10. 2. At the outset, we note that the appeal is delayed by 1769 days. The Ld. Counsel of the assessee submitted before the Bench that the delay for filing the appeal is neither willful nor attributable to any extraneous or ulterior motive on the part of the assessee and the assessee is not benefitted in any way from delayed filing of this appeal. The Ld. Counsel for the assessee submitted that income tax matters of the assessee were being looked after by the chartered accountant of the assessee and the assessee was not aware of anything as to when the appeal is to be filed as the assessee was not kept informed by the said counsel. The Ld. Counsel for the assessee submitted that the delayed filing of appeal has happened purely due to circumstances and reasons which are totally beyond the control of the assessee and is wholly attributable to the failure of the counsel of the assessee to act in the matter of filing the appeal diligently and as per law which he has hopelessly failed to do and therefore the assessee cannot be punished for the wrongs done or mistake on the part of the counsel 2 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj of the assessee. Besides, the ld. Counsel for the assessee submitted that the assessee met with an accident causing serious injuries and fracturing several bones due to which the assessee remained bed ridden thereby suffering adversely. In order to prove his averments , the ld Counsel took us through the affidavit filed , medical certificates and other records. The Ld. Counsel of the assessee has submitted that the delay in filing the appeal may kindly be condoned so that appeal of the assessee could be heard on merit. In defense of his arguments, the ld. Counsel of the assessee relied on the following decisions: i) M/s Midas Compounds vs. ACIT in ITA No. 288/Coch/2017 for AY 2006-07 dated 25.06.2018 ii) Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors. Reported in [1979] 118 ITR 507 (SC) iii) Mercedes Benze Education Academy vs. ITO in ITA No. 745/Pun/2015 v) Vijay Visin Meghani vs. DCIT (2017) 398 ITR 250 (Bom) vi) CIT vs. KSP Shanmugavel Nadai & Ors. (153 ITR 596 ) (Madras- High Court) vii) Orbit Dealmark Pvt. Ltd. vs. ITO in ITA No. 513/Kol/2020 for AY 2012-13 dated 22.04.2022 wherein the Co-ordinate Bench has condoned the delay of 1535 days for the reason that the assessee was suffering from lungs infection and diabetic and other oldage ailments and assessee was not advised properly by the legal consultant who was claimed to have forgotten to file the appeal and lockdown due to outbreak of Covid-19 and extension of limitation period by the Hon’ble Apex court taking the suo- moto writ petition (Civil) No. 3 of 2020 dated 8.3.2021 condoning the delay under all case here. The appeals were required to be filed with the specific period. 3. The Ld. Counsel for the assessee submitted in all the above decisions, the Hon’ble judicial forums have condoned the delay by holding that the tax consultants or advocates’ failure is a reasonable cause and delay has to be condoned. The Ld. 3 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj Counsel also relied on the decision in the case of Collector Land Acquisition vs. MST Katji & Ors. (167 ITR 471). The Ld. Counsel for the assessee finally submitted that considering all these facts and particularly the failure of the counsel of the assessee to file the appeal before the Tribunal and the facts of the assessee having met with an fatal accident fracturing several bones and having remained bed ridden for years constituted a reasonable cause and prayed before the bench that the same may kindly be condoned. 4. The Ld. D.R. on the other hand, strongly opposed the arguments and contentions as put forward by the ld. Counsel of the assessee and argued that as the delay of such inordinate long time of 1769 days needs to be explained. The ld. D.R. submitted that the assessee could not prove any reasonable, genuine and sufficient cause for delay in filing the appeal and therefore the condonation petition may be dismissed. 5. Having heard the rival contentions and perusing the material on record including case laws cited before us, the undisputed position of facts as gathered from the records is that there is a delay of 1769 days in filing of appeal by the assessee which was attributed to the failure of the counsel of the assessee who was handling and looking after the tax matters of the assessee. We also note that during this period, the assessee met with an accident fracturing several bones and also remained bed ridden for a long time. We have also perused the condonation application relating the sequence of reasons explaining the delay in filing the appeal. Taking into account the circumstances of the case, we find that the late filing of appeal there are reasons which were explained before us. In our opinion the delay in filing the appeal deserved to be condoned in the interest of justice and fair play so that the appeal could be heard on merits of the case. The case of the assessee finds support from various decisions as cited before us a few of which are discussed hereinafter. In the case of Collector Land Acquisition vs. MST Katji & ors. (supra) the Hon’ble Apex Court has laid down following principles: 4 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj “i) Ordinarily a litigant does not stand to benefit by lodging an appeal in late ii) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this when delay in condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties, iii) Every day’s delay must be explained does not mean that a pedantic approach should be made, why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational; common sense and pragmatic manner, iv) When substantial justice and technical consideration are pitted against each other; the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay in fact he runs a serious risk, v) There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by resorting to delay, vi) It must be grasped that the judiciary is respected removing injustice and is expected to do so.” We have also perused the ratio laid down in the various decisions as referred to above and find that the failure or delay on the part of the counsel of the assessee to file an appeal was held to be a reasonable cause which renders the delay to be condoned. Accordingly in the interest of justice and fair play, we are inclined to condone the delay and admit the appeal for adjudication. 6. The assessee has assailed the revisionary proceedings u/s 263 of the Act and consequent order as invalid and bad in law as the same are barred by limitation.the assessee has also challenged the order passed u/s 263 of the Act on the ground that the assessment is neither erroneous nor prejudicial to the interest of the revenue. 7. Facts in brief are that the assessee filed return of income on 25.03.2013 declaring loss of Rs. 6,92,232/- and the acknowledged generated from the online web portal of the department was sent to CPC by post in accordance with provisions of Income Tax Act. The return of income was processed u/s 143(1) of the Act accepting the returned income. Thereafter the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act dated 4.10.2012 on the ground that the income of the assessee has escaped assessment. The reasons recorded u/s 148(2) of the Act are 5 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj cited herein below. Thereafter the assessment was framed vide order dated 18.12.2013 passed u/s 143(3) read with 147 of the Act assessing the income at Rs. 23,86,168/- as against the returned loss of Rs. 6,92,232/-. Thereafter the PCIT upon examination of assessment records observed that the assessment order framed u/s 143(3) read with 147 of the Act is erroneous in so far as prejudicial to the interest of the revenue for the reasons that the AO has not conducted any enquiry in respect of certain items appearing in the balance sheet and profit and loss account. Accordingly notice u/s 263 of the Act dated 19.01.2016 was issued which is reproduced as under: On examination of the assessment records for A.Y.2009-10, it appears that the Assessment Order passed by the then Income Tax Officer Ward-37(1), Kolkata (Now ITO,ward- 40(1),Kolkata), a’s Assessing Officer, appears to be erroneous and prejudicial to the interest of revenue, since, the Assessing Officer has failed to make complete and full enquires and also passed the order without considering & examining the facts, information on record, as discussed herein under:- I) On perusal of the balance sheet submitted by you as on 31-03-2009 it is observed that a current liability of Rs. 53,10,278 has been shown for which no enquiry was conducted by the AO to examine the genuineness of these liabilities. Further, huge withdrawal of Rs. 33,09,490 was made from your negative capital balance. You are asked to provide the details .of current liabilities alongwith detail address of parties,-their ledger, register,' cash book and other relevant document. You are further asked to submit the details of drawing account of Rs. 3309490 for the A. Y. 2009-10 (ii) On perusal of profit loss account and balance sheet, it evident that neither you have debited service tax in profit loss account nor it has been shown as payable’ in balance sheet. You are asked to produce the service tax ledger and details of challans paid in support of service tax payment. The assessment records reveal that the Assessing Officer has passed the order in haste, without proper enquires & verification and examination of books of accounts &. other records. . Non- verification & examination of documents leads to erroneous orders which are prejudice to the interest of Revenue. In view of above mentioned discrepancies, your case is being considered for revision u/s 263 of the Income Tax Act, 1961. However, before making any such order of revision, you are allowed an opportunity to appear before the undersigned and be heard on 29.01.2016 at 4.30 pm either personally or through your Authorized Representatives, along with evidences and any other material as you may like to rely on in support of your return of income for AY 2009-10, if you do not agree with the observations mentioned herein before.” 6 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj 8. Finally the revisionary order was passed by the Ld. PCIT u/s 263 of the Act on 10.03.2016 setting aside the assessment framed dated 18.12.2013 u/s 143(3) read with 147 of the Act and directed the AO to frame the assessment afresh after examining the issues proposed in the order. 9. The Ld. Counsel for the assessee submitted before the Bench that the order passed by the Ld. PCIT is hopelessly barred by limitation in terms of provisions of section 263(2) of the Act. The Ld. A.R. submitted that the provisions of section 263(2) provides that no order shall be passed u/s 263(1) after expiry of two years from the end of financial year in which the order sought to be revised was passed. The Ld. A.R. submitted that in this case the assessee filed his original return of income on 30.03.2010 and the return of the assessee was summarily processed u/s 143(1) of the Act accepting the returned income. The Ld. A.R. submitted that thereafter the case of the assessee was reopened u/s 147 of the by issuing notice u/s 148 dated 4.10.2012 on the ground that the income of the assessee has escaped assessment in respect of certain items of income as mentioned below. In other words the case of the assessee was re- opened on the grounds that some items of expenses were not allowable as no TDS was deducted and deposited with the Govt. Treasury. The assessment u/s 143(3) read with 147 of the Act was framed vide order dated 18.1.2013 assessing the income at Rs. 23,86,168/- by making addition in respect of four disallowance namely: i) Disallowance of artist remuneration ii) Disallowance of studio hire charges iii) Disallowance of interest paid on unsecured loans iv) Disallowance of car hire charges, conveyance & depreciation. The Ld. Counsel for the assessee submitted that the issues as have been raised by the Ld. PCIT in the show cause notice issued u/s 263 of the Act and finally as mentioned in the revisionary order were not the subject matter of the reassessment proceedings which culminated in framing of assessment u/s 143(3) read with 147 of the Act as stated above. Therefore, setting aside the assessment framed u/s 143(3) read with 147 7 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj of the Act dated 18.12.2013 is bad in law and against the provisions of Act. The Ld. A.R submitted that in the reassessment proceedings the AO has no occasion to examine the issues in respect of current liabilities of Rs. 53,10,278/- as shown the balance sheet as on 31.03.2009 and withdrawal of Rs. 33,09,490/- which according to the Ld. PCIT was made against the negative capital balance and similarly the AO has no occasion to examine as to why the service tax was not charged to the profit and loss account and also not shown in the balance sheet. The Ld. A.R. submitted that the scope of powers to be exercised u/s 147 of the Act read with 148 vis-à-vis 143(3) are not same. The Ld. A.R. submitted that it is only in the original assessment proceedings where the AO has unlimited powers of examining all the issues whereas in the reassessment proceedings, the scope of powers are totally different. The Ld. A.R submitted that in the proceedings u/s 147 of the Act, the AO did not come across any such issues as pointed out by the Ld. PCIT in the revisionary order in respect of current liabilities or withdrawals against negative capital balance and non-charging service tax in the profit and loss account or not showing in the same in the Balance Sheet. Therefore the Ld. Counsel argued that the revisionary jurisdiction was wrongly invoked to set aside and cancel reassessment framed u/s 143(3) read with 147 dated 18.12.2013 in respect of those items which were not the subject matter of reassessment but it could have been exercised only with respect to original assessment framed u/s 143(3) of the Act. The ld Counsel submitted that but in the present case there was no such assessment framed u/s 143(3) of the Act and the case of assessee was process u/s 143(1) of the Act. The ld. A.R. submitted that in view of this fact, the order passed u/s 143(3) read with 147 was wrongly held to be erroneous in so far as prejudicial to the interest of the revenue. The Ld. Counsel for the assessee therefore submitted that the Ld. PCIT has grossly erred in revising and setting aside the reassessment order dated 18.12.2013. the ld Counsel for the assessee argued that in view of these facts the same is barred by limitation as the show cause notice u/s 263 of the Act was issued on 19.01.2016. The Ld. A.R. also submitted that the doctrine of merger did not apply in the instant case as the issues sought to raised by the PCIT were not there in the re- assessment proceedings or re-assessment proceedings had nothing to do with the 8 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj issues sought to be raised by PCIT and therefore the period of limitation has to be reckoned and commenced from the date of original assessment and not from the date of reassessment. In defense of its arguments, the Ld. Counsel relied on the decision of Hon’ble Supreme Court in the case of CIT vs. Aagendran Finance Ltd. reported in [2007] 293 ITR 1 (SC) and also the decision of Hon’ble Bombay High Court in the case of CIT vs. ICICI Bank Limited (2012) 343 ITR 74 (Bom.). The Ld. Counsel for the assessee submitted that in both these decisions, the Hon’ble Courts have held that the two years period of limitation shall run from the end of financial year in which the original assessment was framed and not from the end of financial year in which the reassessment was framed when the issue on which the assessment was revised was not subject matter of reassessment proceedings. The Ld. A.R. therefore submitted that the order of Ld. PCIT is barred by limitation and may kindly be quashed. Taking the alternative plea, the ld Counsel for the invocation of jurisdiction u/s 263 of the Act , the assessment order has to erroneous as well as prejudicial to the interest of the revenue. The ld Counsel argued that these are the twin conditions which have to be satisfied concurrently and simultaneously. The ld counsel contended that when only one of the two condition is satisfied , the jurisdiction is not available to the ld. PCIT . the ld AR contended that ld. PCIT has failed to demonstrate as to how the reassessment order is erroneous and prejudicial to the interest of the revenue due to non examination of the issues as proposed in the order passed u/s 263 of the Act. In defense of his arguments the ld AR relied on the decision of the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd Vs CIT(2000) 243 ITR 43(SC). 10. Per contra, the ld. D.R. relied heavily on the order of ld. PCIT by submitting that no prejudice is going to be caused to the assessee if the assessment order is revised by the Assessing Officer as the assessee would be given reasonable and sufficient opportunity during the set aside assessment proceeding also and the assessee is free to present its case on merit before the Assessing Officer. The ld. D.R. also submitted that the ld. PCIT has only directed the Assessing Officer to verify the issue proposed in the impugned order and frame the order in accordance with law after 9 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj making the fresh enquiries after affording reasonable opportunity of being heard to the assessee and therefore, the same needs to be affirmed by the dismissing the legal issue raised by the assessee. 11. Having heard the rival contentions and perusing the material available on record, we note that in the instant case there is no assessment under section 143(3) of the Act and case of the assessee was processed u/s 143(1) of the Act accepting the returned income. Thereafter the assessment was reopened by the Assessing Officer under section 147 read with section 148 of the Act on 04.10.2012 after recording the reasons to believe under section 148(2) of the Act that income has escaped assessment due to certain amounts of expenses being allowed without deduction of TDS namely i) artists remuneration ii)Studio Hire Charges iii)Interest paid on unsecured loans and iv)Car hire charges , conveyance and dep. etc and not in respect of the issues raised by the ld. PCIT in the order passed u/s 263 of the Act. The reassessment proceeding concluded and culminated vide order dated 18.12.2013 passed under section 143(3) read with section 147 of the Act. Now the issue before us for adjudication is whether the revisionary jurisdiction exercised by the ld. PCIT under section 263 of the Act in relation to the re-assessment order passed u/s 143(3) r.w.s. 147 of the Act of the Act or whether revisionary proceedings are barred by limitation or not . We have perused the provisions of the Act and observe that the scope of powers of the AO in original assessment proceedings vis-a vis reassessment proceedings are not same. In order to decide the issue at hand we would like to dwell into the powers of the AO in the original assessment proceedings as well as the reassessment proceedings. In the original assessment proceedings, the AO has vast powers whereas in the reassessment proceedings the powers are limited though the AO has the power to assess any other item of income which is not subject matter of the reasons u/s 148(2) of the Act which comes to notice during the course of assessment proceedings but subject to the condition that the addition is made in respect of escaped income as recorded in the reasons u/s 148(2) of the Act. We note that there is no assessment order under section 143(3) and the returned income as per ITR was accepted under summary 10 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj assessment s as the return was processed u/s 143(1) of the Act . In the reopened assessment under section 147 read with section 148 of the Act as finalized vide order dated 18.12.2013, the issues as raised by the ld PCIT in the order passed u/s 263 of the Act were neither subject matter of reasons recorded u/s 148(2) of the Act nor did the AO came across such items during reassessment proceedings. 12. Considering the facts of the case vis-a-vis the and the provisions of section 263(2) of the Act and also the citations made by the ld. Sr. Counsel before us, we are of the considered view that the re-assessment order dated 18.12.2013 passed under section 143(3) r.w.s. 147 of the Act cannot be considered as erroneous and prejudicial to the interest of the Revenue as there is no mistake crept in it nor it is prejudicial to the interest of the revenue. In our opinion, the limitation runs from the end of the financial year in which the original assessment under section 143(3) of the Act was framed but in the present case no assessment was framed u/s 143(3) of the Act , whereas the ld. PCIT has set aside and revised the reassessment order under section 143(3) read with section 147 dated 18.12.2013 and consequently the revisionary jurisdiction of the ld. PCIT cannot be sustained. The case of the assessee finds force from the decision in the case of CIT –vs.- Alagendran Finance Limited (supra), wherein the Hon’ble Apex Court has held that the period of limitation has to run from the date of order of assessment and not from the date of order of reassessment, where the item/issue in respect of which order is revised under section 263 of the Act by the ld. PCIT is not the subject matter of reassessment proceedings. The facts before the Hon’ble Apex Court were that , the ld. PCIT had sought to revise the part of the order of assessment, which related the lease equalisation fund. The reassessment proceeding was initiated and culminated under section 143(3) read with section 147 of the Act in which the issue of lease equalisation fund was not the subject matter and the Hon’ble Court has, therefore, held that doctrine of merger did not apply in the case of this nature and the period of limitation commences from the date of original assessment and not from the date of reassessment since the latter had not anything to do to lease equalisation fund and this was not a case where subject 11 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj matter of assessment and subject matter of re-assessment were same. The Hon’ble Apex Court while passing the order has relied on the decision of Coordinate Bench in the case of CIT –vs.- Arbuda Mills (1998) 231 ITR 50 (SC). Similar ratio as laid down by the Hon’ble Bombay High Court in the case of CIT –vs,- ICICI Bank Limited(Supra) wherein the Hon’ble Bombay High Court has held that where the jurisdiction under section 263(1) of the Act is sought to be exercised with reference to an issue which is covered by the original order of assessment under section 143(3) of the Act and which does not form the subject matter of the reassessment, the limitation must necessarily begin to run from the date of order passed under section 143(3) by observing and holding as under:- “Held, dismissing the appeal, that neither in the first reassessment nor in the second reassessment was any issue raised or decided in respect of the deductions under section 36(1)(vii), (viia) and the foreign exchange rate difference. The order of the Commissioner under section 263(2) had not been passed with reference to any issue which had been decided either in the order of the first reassessment or in the order of second reassessment but sought to revise issues decided in the first order of assessment passed under section 143(3) on March 10, 1999, which continued to hold the field as regards the three issues in question. The order dated March 10, 1999, did not merge with the orders of reassessment in respect of issues which did not form the subject matter of the reassessment. Consequently, Explanation 3 to section 147 would not alter that position. Explanation 3 only enables the Assessing Officer, once an assessment is reopened, to assess or reassess the income in respecdt of any issue, even an issue in respect of which no reasons were indicated in the notice under section 148(2). This, however, will not obviate the bar of limitation under section 263(2). The invocation of the jurisdiction under section 263(2) was barred by limitation”. 13. In the instant case before us also the issue on which the ld. PCIT revised and set aside the reassessment order dated 18.12.2013 passed u/s 143(3) r.w.s. 147 of the Act , comprised of issues of current liability , withdrawal against debit capital account and not charging of service tax in the profit and loss account which were undoubted not the subject matter of reassessment proceedings. Therefore, the period of limitation has to run from the date of assessment as framed under section 143(3) but there was no assessment u/s 143(3) of the Act. We have also examined the possibility of treating the intimation passed u/s 143(1) of the Act as assessment order and limitation can be reckoned from that order. Even in that scenario our conclusion would be same . Therefore, in view of this, we are inclined to hold that the revisionary jurisdiction 12 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj exercised by the ld. PCIT is wrong and thus cannot be sustained as it hopelessly barred by limitation. 14. Even otherwise on merits, the issues raised by the ld PCIT in the revisionary proceedings which finally resulted into the reassessment order dated 18.12.2013 being revised and set aside in no way can be said to be issues rendering the assessment order to be erroneous. In other words , the issues raked up and proposed by the ld PCIT in the order passed u/s 263 of the Act were not such which could render the assessment as erroneous. The main purpose of exercising the revisionary jurisdiction u/s 263 of the Act was non examination of current liabilities Rs. 55,10,278/-, withdrawals of Rs. 33,09,490/- against debit capital balance and not charging of service tax to the profit and loss account nor showing it as payable in balance sheet. We observe from the audited balance sheet that substantial part of the current liability is coming from the preceding year and non examination of the same could render the assessment as erroneous is not understandable. Similarly the withdrawals against negative capital balance can render the assessment as erroneous is also beyond our understanding. Lastly the non charging of service tax and not showing in the balance sheet can influence the correctness of the order. In our considered opinion these issues are not such which can render the assessment erroneous. Similarly what prejudice is caused to the revenue is also not clear from the order of the ld PCIT. In order to revise the order the twin conditions have to be satisfied i.e. the order has to be erroneous and secondly it must be prejudicial to the interest of the revenue. This ratio has been laid down by the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd Vs CIT (supra). But in the instant case before us these conditions are not satisfied. 15. Considering the facts of the case in the light of the ratio laid down by the Hon’ble Courts as discussed herein above, the appeal of the assessee is allowed by quashing the revisionary proceedings as well as order passed u/s 263 of the Act. 13 ITA No. 569/Kol/2021 AY: 2009-10 Deepak Bajaj 16. In the result, the appeal of the assessee is allowed. Order is pronounced in the open court on 30 th June, 2022 Sd/- Sd/- (Sonjoy Sarma) (Rajesh Kumar) Judicial Member Accountant Member Dated: 30 th June, 2022 SB, Sr. PS Copy of the order forwarded to: 1. Appellant- Deepak Bajaj, 77, S.P. Mukherjee Road, Gr. Floor, WB-700026 2. Respondent – ITO, Ward-40(1), Kolkata 3. The PCIT-14, Kolkata 4. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata