LAXMI ASBESTOS PRODUCTS LTD, MUMBAI V. DCIT RG 1(2), MUMBAI

ITA 1204/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8875 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 11-01-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 15-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: NARAYAN ATAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G , MUMBAI BEFORE SHRI PRAMOD KUMAR, AM AND SHRI V. DURGA RA O, JM I.T.A.NO. 1204/MUM/2010 ASSESSMENT YEAR : 2005-06 M/S. LAXMI ASBESTOS PRODUCTS LTD., SHREENIWAS HOUSE, 4 TH FLOOR, HAZARIMAL SOMANI MARG, FORT, MUMBAI 400 001. PAN: AAACL 1781 E VS. THE DY. COMMISSIONER OF INCOME- TAX, RANGE 1(2), MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI NARAYAN ATAL RESPONDENT BY : SHRI A.K. NAYAK O R D E R PER V. DURAGA RAO, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-2, MUMBAI DATE D 20.11.2009 FOR THE ASSESSMENT YEAR 2005-06. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THE SE COND FROM NO. 35 FILED BY THE ASSESSEE AMOUNTS TO FILING OF A SECOND APPEAL ON THE SAME ISSUE AND FOR THE SAME ASSESSMENT YEAR. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE PUT FORTH IN THIS APPEAL IS COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF THE WEST COAST PAPER MILLS LTD. IN ITA NO.1165/MUM/2010 DATED 8.10.2010. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT RAISE ANY SERIOUS OBJECTION TO THE SUBMISSION MADE BY THE LEARNED A.R . 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND ALSO PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ISSUE INVOLV ED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN ITA NO.1 165/MUM/2010 DECIDED ON 8.10.2010, WHEREIN THE TRIBUNAL HELD IN PARA 6 AS U NDER: AFTER CONSIDERING THE RIVAL CONTENTIONS AND RELEVA NT RECORD, WE FIND THAT THE ORIGINAL APPEAL MEMORANDUM WAS NO T VERIFIED BY THE MANAGING DIRECTOR AS REQUIRED UNDER THE LAW. HOWEVER, WHEN THE ASSESSEE FILED A FRESH FORM NO.35 WHICH ITA NO.1204/M/2010 M/S.LAXMI ASBESTOS PRODUCTS LTD. . . 2 WAS DULY VERIFIED AND SIGNED BY THE MANAGING DIREC TOR AND THE CIT(A) HAS DULY ACKNOWLEDGED THE FILING OF TH E FRESH FORM NO.35 BUT DID NOT ENTERTAIN THE SAME ON THE G ROUND THAT AS LONG AS THE FATE OF THE EXISTING FORM NO.35 IS NOT DECIDED, A FRESH FORM NO.35 FOR THE SAME ASSESSMEN T YEAR IS NOT VALID. THE CIT(A) GAVE THE REASONING FOR N OT ENTERTAINING THE FORM NO.35 AS THE LAW DOES NOT PRESCRIBE TWO APPEALS TO BE FILED ON THE SAME ISSUE. WE DO NOT SUBSCRIBE THE VIEW OF THE CIT(A) ON THIS POINT BECA USE, FIRSTLY, THE DEFECT OF SIGNING OF THE NOMINATION O F THE FORM IS A RECTIFIABLE DEFECT, THEREFORE, THE APPEAL CANNOT BE OUT- RIGHTLY DISMISSED WITHOUT ALLOWING THE ASSESSEE T O RECTIFY THE DEFECT. SECONDLY, THE FORM NO.35 IS ONLY A SU BSTITUTION OF THE EARLIER FORM NO.35 AND DOES NOT AMOUNT TO FILI NG OF A SECOND APPEAL FOR THE SAME ASSESSMENT YEAR. THEREF ORE, THE FILING OF THE FRESH FORM NO.35 FOR RECTIFICATI ON OF THE DEFECT IN THE EARLIER FORM DOES NOT AMOUNT OF FILIN G OF SECOND APPEAL BUT ONLY SUBSTITUTING OF THE EARLIER FORM FO R RECTIFICATION OF THE DEFECT. 5. WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL CITED SUPRA, SET ASIDE THE ORDER PASSED BY THE LEARNED CI T(A) AND REMAND THE MATTER BACK TO HIM WITH DIRECTION TO DEC IDE THE SAME AFRESH ON MERITS. 6. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF JANUARY, 2011. SD. SD. (PRAMOD KUMAR) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED THE 21 ST JANUARY, 2011. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT, CITY-I, MUMBAI 4. THE CIT(A)-2, MUMBAI 5. THE DR G BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI