Smt. Joginder Kaur, Chandigarh V. ITO, Chandigarh

ITA 1130/CHANDI/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90137 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 19-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 1130/CHD/2014 ASSESSMENT YEAR: 2007-08 SMT. JOGINDER KAUR, VS THE ITO, W/O SHRI GURPAL SINGH, WARD 4(2), 105, GF SECTOR 28-A, CHANDIGARH. CHANDIGARH. PAN: AQMPK6278L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURINDER MAH AJAN RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 18.05.2015 DATE OF PRONOUNCEMENT : 20.05.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) CHANDIGARH DATED 14.10.2014 FOR ASSESS MENT YEAR 2007-08. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE LD. C IT(APPEALS) NOTED IN THE IMPUGNED ORDER THAT PERUSAL OF FORM NO . 35 [APPEAL PAPERS FILED BEFORE LD. CIT(APPEALS)] REVEALED THAT IT HAS NOT BEEN SIGNED BY THE ASSESSEE. A POWER OF ATTORNEY HAS BE EN ATTACHED WITH THE APPEAL PAPERS IN WHICH ASSESSEE HAS AUTHOR IZED HIS COUNSEL TO APPEAR, ACT AND PLEAD BEFORE LD. CIT(APP EALS). THE LD. CIT(APPEALS) NOTED THAT AS PER PROVISIONS OF SECTIO N 249(1) OF THE INCOME TAX ACT, EVERY APPEAL BEFORE LD. CIT(APPEALS ) IS TO BE FILED IN PRESCRIBED FORM NO. 35 AND HAS TO BE VERIFIED IN THE MANNER PRESCRIBED IN RULE 45 OF THE IT RULES AND AS PER PR OVISIONS OF THIS 2 RULE, THE APPEAL PAPERS HAVE TO BE SIGNED AND VERIF IED BY THE PERSON WHO IS AUTHORIZED TO SIGN THE RETURN OF INCO ME UNDER SECTION 140 OF THE INCOME TAX ACT. THE LD. CIT(APP EALS), THEREFORE, NOTED THAT THE APPEAL PAPERS HAVE TO BE VERIFIED AN D SIGNED BY THE ASSESSEE HIMSELF AND SINCE THE APPEAL IS NOT SIGNED AND VERIFIED IN THE MANNER PRESCRIBED UNDER THE ABOVE RULES, THE AP PEAL COULD NOT BE ADMITTED AND AS SUCH APPEAL WAS TREATED AS INVAL ID AND APPEAL WAS DISMISSED. 3. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO COP Y OF FORM NO. 35 FILED WITH THE APPEAL PAPERS WHICH WAS FILED BEF ORE LD. CIT(APPEALS) AND VERIFICATION IS SIGNED BY THE ASSE SSEE BUT THE MAIN APPEAL WAS SIGNED BY THE COUNSEL FOR ASSESSEE. HE HAS SUBMITTED THAT IT WAS A DEFECT IN MEMORANDUM OF APP EAL WHICH IS CURABLE DEFECT AND LD. CIT(APPEALS) SHOULD HAVE ALL OWED THE OPPORTUNITY TO ASSESSEE TO SIGN THE MEMORANDUM OF A PPEAL AS PER RULES AND AS SUCH, SHOULD NOT HAVE DISMISSED THE AP PEAL OF THE ASSESSEE. HE HAS RELIED UPON FOLLOWING DECISIONS : I) DECISION OF HON'BLE DELHI HIGH COURT IN THE CAS E OF REMFRY & SONS VS CIT 276 ITR 1 IN WHICH IT WAS HELD AS UND ER : SIGNING OF MEMORANDUM OF APPEAL BY THE AUTHORISED REPRESENTATIVE OF THE FIRM, NOT THE PRESCRIBED PERS ON UNDER R. 45, WAS A CURABLE IRREGULARITY WHICH CO ULD BE RECTIFIED ON THE DATE OF FILING OF THE APPEAL OR EV EN SUBSEQUENT THERETO AS THE APPEAL WAS ADMITTEDLY FIL ED WITHIN THE PERIOD OF LIMITATION; APPEAL IS RESTORED TO THE CIT(A) FOR HEARING IN ACCORDANCE WITH LAW. II) DECISION OF HON'BLE MADHYA HIGH COURT IN THE CA SE OF CIT VS HOPE TEXTILES LTD. 287 ITR 321, IN WHICH IT WAS HEL D AS UNDER : REQUIREMENTS OF R. 45 R/W S. 140 ARE NOT MANDATORY BUT ARE DIRECTORY IN NATURE AND, THEREFORE, WHERE T HE MEMO OF APPEAL IS NOT SIGNED BY THE APPELLANT PERSONALLY BUT BY AN ADVOCATE, THE APPELLATE AUTHOR ITY MUST AFFORD AN OPPORTUNITY TO THE APPELLANT TO REMO VE THE DEFECT BEFORE DISMISSING THE APPEAL. 3 III) DECISION OF HON'BLE PUNJAB & HARYANA HIGH COUR T IN THE CASE OF HIND SAMACHAR LTD. VS UNION OF INDIA 330 IT R ITR 266, IN WHICH IT WAS HELD AS UNDER : A RETURN WHICH IS SIGNED AND VERIFIED BY A PERSON OTHER THAN THE ONE AUTHORIZED UNDER THE ACT HAS TO BE TRE ATED AS DEFECTIVE AND IS AMENABLE TO THE PROVISIONS OF S S. 292B AND 139(9); ASSESSEE HAVING SUBSEQUENTLY FILED ANOTHER RETURN SIGNED AND VERIFIED BY THE MANAGING DIRECTOR, THE RETURN FILED BY THE COMPANY COULD NOT BE TREATED TO BE INVALID OR NON EST; AO HAVING NOT RAI SED ANY ISSUE WITH REGARD TO APPLICABILITY OF S. 239 CO ULD NOT THEREAFTER RAISE SUCH A PLEA AND DENY REFUND TO THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON IMPUGNED O RDER AND SUBMITTED THAT SINCE APPEAL IS NOT SIGNED BY THE AP PELLANT- ASSESSEE, THEREFORE APPEAL WAS CORRECTLY DISMISSED. 5. THE LD. DR RELIED UPON DECISION OF HON'BLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF CIT VS DR. KRISHAN LAL GO YAL 148 ITR 283 IN WHICH IT WAS HELD THAT, WHEN THE UNVERIFIED RETURN IS FILED, IT IS INVALID RETURN AND AS SUCH ORDER PASSED ON TH E BASIS OF SUCH RETURN IS INVALID. DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS HARJINDER KAUR 310 ITR 71 IN WHICH IT WAS HELD THAT FAILURE BY ASSESSEE TO SIGN AND VERIFY RETURN, DEFE CT COULD NOT BE CURED - RETURN INVALID. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE DECISIONS CITED BY BOTH THE PARTIES. THE LD. COUNS EL FOR THE ASSESSEE RELIED UPON DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF REMFRY & SONS VS CIT (SUPRA) AND DECISION O F HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS HOP E TEXTILES LTD. (SUPRA) WHICH ARE DIRECTLY ON THE ISSUE AND WO ULD SUPPORT THE CASE OF ASSESSEE THAT MERELY BECAUSE APPEAL IS NOT SIGNED BY THE ASSESSEE, WHICH WAS A CURABLE DEFECT AND SHOULD HAV E BEEN RECTIFIED BEFORE THE LD. CIT(APPEALS). IN THE PRES ENT CASE, 4 ACCORDING TO FORM NO. 35 AS FILED ON RECORD, WOULD REVEAL THAT VERIFICATION HAS BEEN SIGNED BY THE ASSESSEE. THER EFORE, EVEN IF THE MAIN APPEAL IS NOT SIGNED BY THE ASSESSEE, THE LD. CIT(APPEALS) SHOULD HAVE GIVEN OPPORTUNITY TO THE ASSESSEE TO R EMOVE DEFECT BEFORE DISMISSING THE APPEAL. BOTH THESE DECISIONS ARE DIRECTLY ON THE POINT AND IN ISSUE AND WOULD SUPPORT THE CASE O F THE ASSESSEE. THEREFORE, WITHOUT GOING INTO THE MERITS OF CLAIMS OF BOTH THE PARTIES ON OTHER ISSUES, WE HOLD THAT THE DEFECT OF THE NATURE INVOLVED IN APPEAL OF ASSESSEE WAS CURABLE DEFECT A ND LD. CIT(APPEALS) SHOULD HAVE GIVEN OPPORTUNITY TO THE A SSESSEE TO FILE AMENDED FORM NO. 35 BEFORE DECIDING THE APPEAL. WE , ACCORDINGLY, SET ASIDE THE IMPUGNED ORDER AND RESTO RE THE APPEAL OF ASSESSEE TO THE FILE OF LD. CIT(APPEALS) WITH DI RECTION TO THE LD. CIT(APPEALS) TO AFFORD OPPORTUNITY OF BEING HEARD T O THE ASSESSEE TO FILE FORM NO. 35 IN ACCORDANCE WITH RULES AND ON FILING THE AMENDED FORM NO. 35 BY THE ASSESSEE DULY SIGNED AND VERIFIED BY THE ASSESSEE, THE LD. CIT(APPEALS) SHALL PROCEED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS BY GIVING REASONAB LE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MAY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH MAY,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH