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TMI Blog2022 (8) TMI 1453X X X X Extracts X X X X X X X X Extracts X X X X ..... learned tribunal had entertained the appeal and it was assigned [ 2014 (9) TMI 1277 - ITAT KOLKATA] - Therefore, the explanation offered by the appellant that he was under the belief that the appeal would be heard and decided on merits appears to be reasonable as the appeal was not returned by the registry of the learned tribunal on the ground of maintainability. No instruction was given by the appellant to withdraw the appeal to the earlier consultant etc., are of self-serving statement of the appellant of which we cannot take any cognizance - Nevertheless, we are convinced that the conduct of the appellant cannot be stated to be so bad to hold that he had slept over his rights. The appellant had been prosecuting the matter before a wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fford an opportunity to contest the matter on merits, we direct the appellant that the appellant shall deposit 15% before the assessing officer within three weeks from the date of receipt of the server copy of this judgment and order. If such deposit is effected, the appellant is directed to file a petition before the Commissioner of Income Tax-II, Kolkata along with the receipt requesting the revisional application to be taken up on merits. If such petition is filed, the revisional authority shall take into consideration the same and decide the revision petition filed under section 264 of the said Act on 5th March, 2012 on merits and in accordance with law. X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter and therefore, no relief can be granted and accordingly, the writ petition stood dismissed. The correctness of the said order is put to challenge in this appeal. 6. We have elaborately heard the learned Advocate appearing for the appellant and Mr. Aryak Dutt, learned senior standing counsel for the respondents/department, whom we had directed to accept notice on behalf of the respondents/department with a direction to the Ministry/department so as to regularise his engagement. Since the issue involved in this appeal lies in a very narrow campus, the appeal itself is taken up for disposal. The following dates and events would be relevant to examine the conduct of the appellant. 7. The assessment for the year 2009-2010 was complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said representation was not attended to nor any reply was received by the appellant. It is the appellant's case that thereafter a server copy of the said order was obtained from the website of the learned tribunal and the writ petition was filed before this Court on 4th February, 2022. 9. The question would be whether the above dates and events could be taken as if the appellant has slept over his rights and had not been diligent in prosecuting the matter. In our considered view, the appellant cannot be stated to be a habitual defaulter but nevertheless did not take active steps to follow up the matter with the consultants/Advocate, who was engaged to file the appeal before the tribunal. Though the appeal was presented against an order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the assessing officer on the grounds raised by the assessee. We also find from the order dated 26th February, 2013 passed by the revisional authority, the report called for from the assessing officer has been received by the revisional authority. Therefore, we are of the view that the revision ought to be heard and disposed of on merits. However, noting that the matter is a long pending matter and the appellant has been pursuing his remedy before a wrong forum and the appeal before the tribunal was withdrawn and the appellant would state that he never instructed his consultant to withdraw the appeal etc., we are of the view that if the appellant requires one more opportunity to contest the revision petition on merits, he should be put on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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