Mohammed Naseeruddin, Hyderabad, Hyderabad V. ITO, international Taxantion-2, Hyd, Hyderabad

ITA 1390/HYD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2516 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 26-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 17-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A SMC : HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT I TA.NO. 1390/HYD/2016 ASSESSMENT YEAR 2011 - 2012 MOHAMMED NASEERUDDIN, HYDERABAD. PAN: AFFPN 1575 F VS. ITO (INTERNATIONAL TAXATION) - II, HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE: SHRI MOHD. AFZAL FOR REVENUE : S MT. SUMAN MALIK, DR DATE OF HEARING : 2 7 .07 .2017 DATE OF PRONOUNCEMENT : 26 . 10 .2017 ORDER PER D. MANMOHAN , VP. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A) - 10, HYDERABAD AND IT PERTAINS TO ASSESSMENT YEAR 2011 - 2012. 2. AT THE OUTSET IT MAY BE NOTICED THAT THE FIRST APPELLATE AUTHORITY DISMISSED THE APPEAL ON THE GROUND THAT FORM NO.35 FILED BY ASSESSEE IS DEFECTIVE IN VIEW OF THE FA CT THAT IT WAS SIGNED BY SMT. SHAHEDA TABASSUM, AUTHORIZED REPRESENTATIVE OF ASSESSEE AND NOT BY ASSESSEE HIMSELF. BEFORE THE TRIBUNAL ASSESSEE CONTENDS THAT EVER AS PER SECTION 140 OF THE INCOME TAX ACT, 1961, ASSESSEE IS ENTITLED TO FILE AN APPEAL THROU GH AN AUTHORIZED REPRESENTATIVE, UNDER CERTAIN CIRCUMSTANCES. IN THIS REGARD, HE ADVERTED MY ATTENTION TO SECTION 140 OF THE ACT AND THE LANGUAGE EMPLOYED THEREIN COUPLED WITH RULE 45 OF THE INCOME TAX RULES, 1962 TO STATE THAT GROUNDS OF APPEAL AND FORM OF VERIFICATION APPENDED THERETO RELATING TO AN ASSESSEE CAN BE SIGNED AND VERIFIED BY A PERSON WHO IS AUTHORIZED TO SIGN THE RETURN OF INCOME. IN THE INSTANT CASE ASSESSEE WAS LIVING ABROAD AT THE RELEVANT POINT OF TIME AND HENCE AUTHORIZATION WAS GIVEN TO SMT. SHAHEDA TABASSUM TO FILE AN APPEAL AND ACCORDINGLY FORM NO.35 WAS SIGNED BY HER. 2 3. IT IS NOT IN DISPUTE THAT ASSESSEE IS AN NRI AND MOSTLY OUT OF INDIA. IT IS NOT THE CASE OF FIRST APPELLATE AUTHORITY THAT SMT. SHAHADA TABASSUM, CHARTERED ACCOUN TANT, WAS NOT AUTHORIZED TO FILE AN APPEAL. SECTION 140 OF THE INCOME TAX ACT, 1961 SPEAKS OF THE PERSON WHO IS ENTITLED TO SIGN THE RETURN OF INCOME. IN THE CASE OF AN INDIVIDUAL, RETURN OF INCOME CAN BE SIGNED BY THE INDIVIDUAL HIMSELF AND IN THE EVENT OF NON - AVAILABILITY OF THE SAID INDIVIDUAL, BEING OUT OF COUNTRY, IT CAN BE SIGNED BY SOME OTHER PERSON DULY AUTHORIZED IN THIS BEHALF. WHERE, FOR ANY REASON, IT IS NOT POSSIBLE FOR THE INDIVIDUAL TO VERIFY THE RETURN, IT CAN BE SIGNED BY ANY OTHER PERSO N DULY AUTHORIZED BY HIM IN THIS BEHALF. THE ONLY EXTRA CONDITION THAT WAS IMPOSED WAS THAT IN THE EVENT OF FILING OF RETURN OF INCOME UNDER THE SIGNATURE OF AN AUTHORIZED REPRESENTATIVE, THE SAID REPRESENTATIVE SHOULD HOLD A POWER OF ATTORNEY TO FILE RET URN OF INCOME AND IT HAS TO BE ATTACH ED TO THE RETURN. RULE 45 OF THE INCOME TAX RULES, 1962 MERELY SPEAKS OF FILING OF AN APPEAL BY THE PERSON WHO IS AUTHORIZED TO VERIFY THE RETURN OF INCOME U/S 140 OF THE ACT. IN OTHER WORDS, SO LONG AS AN AUTHORIZED REPRESENTATIVE OBTAINS AN AUTHORIZATION TO FILE AN APPEAL, APPEAL CAN BE FILED AND MERELY BECAUSE OF RETURN OF INCOME IS SIGNED BY SOME OTHER PERSON I.E., MR. L.M. ARIF IT CANNOT BE SAID THAT ASSESSEE CANNOT CHANGE AN AUTHORIZED REPRESENTATIVE FOR FILING O F AN APPEAL. 4. LD COUNSEL FOR THE ASSESSEE FILED WRITTEN SUBMISSIONS AND RELIED UPON DECISION OF THE ITAT, DELHI BENCH IN THE CASE OF M/S. INDIAN AIRLINES LIMITED VS. DCIT (ITA NO.72/DEL/2011, DATED 30.09.2011) TO SUBMIT THAT AN APPEAL SHOULD NOT BE DIS MISSED MERELY BECAUSE IT WAS NOT SIGNED BY THE ASSESSEE AND IN FACT SUCH DEFECT CANNOT BE TREATED AS AN IRREGULARITY AND IT SHOULD BE ALLOWED TO BE RECTIFIED BY GIVING PROPER OPPORTUNITY TO THE ASSESSEE. RELIANCE WAS ALSO PLACED ON A DECISION OF THE ITAT, HYDERABAD BENCH (104 ITD 15) TO SUBMIT THAT AMPLE OPPORTUNITY SHOULD HAVE BEEN GIVEN TO THE ASSESSEE, IN THE INTEREST OF SUBSTANTIAL JUSTICE , TO ENABLE THE ASSESSEE TO RECTIFY THE DEFECT , IF ANY , BECAUSE TECHNICAL DEFECTS SHOULD NOT COME IN THE WAY OF REN DERING SUBSTANTIAL JUSTICE. 5. ON THE OTHER HAND LD DR RELIED UPON THE ORDER PASSED BY LD. CIT(A). 6. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN CASE OF CIT VS. CALCUTTA CO. LTD., (91 ITR 8) HONBLE SUPREME COURT OBSERVED THAT 3 INCOME TAX MATTER S SHOULD BE DEALT WITH BY LOOKING INTO THE SUBSTANCE OF THE MATTER RATHER THAN BEING UNDULY INFLUENCED BY THE PROCEDURAL TECHNICALITIES. KEEPING THE RATIO IN MIND IT HAS TO BE SEEN AS TO WHETHER THE APPEAL FILED BY ASSESSEE IS DEFEC TIVE; IF IT IS A CURABLE DEFECT WHETHER A PROPER OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE. IT IS NOT THE CASE OF FIRST APPELLATE AUTHORITY THAT THE CA WHO HAS SIGNED FORM NO.35 IS NOT AUTHORIZED BY THE ASSESSEE. HOWEVER, IT IS ALSO A FACT THAT MR. L.M. ARIF SIGNED THE RETURN OF INCOME SINCE HE WAS AUTHORIZED TO DO SO AT THAT STAGE. A CAREFUL ANALYSIS OF PROVISIONS OF SECTION 140 READ WITH RULE 45 INDICATES THAT THE ASSSESSEE IS NOT BOUND BY ANY RULE TO OBTAIN THE SIGNATURE OF SAME AUTHORIZED REPRESENTA TIVE WHILE FILING AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY MERELY BECAUSE THE SAID PERSON HAS SIGNED RETURN OF INCOME. ALL THAT IS STATED THEREIN IS THAT THE PERSON , WHO SIGNED THE FORM NO.35 SHOULD BE AUTHORIZED BY ASSESSEE AND HE SHOULD HOLD A POWER OF ATTORNEY. IN THE INSTANT CASE LD CIT (A) APPEARS TO HAVE NOT LOOKED INTO FROM THAT PERSPECTIVE AND WITHOUT GIVING A PROPER OPPORTUNITY OF BEING HEARD TO ASSESSEE THE APPEAL WAS DISMISSED IN LI MINE . UNDER THESE CIRCUMSTANCES I DEEM IT FAIR AND REASONABLE, IN THE INTEREST OF SUBSTANTIAL JUSTICE, TO SET ASIDE THE ORDER PASSED BY LD CIT (A) AND DIRECT HIM TO ADMIT THE APPEAL AND PROCEED TO DISPOSE OF THE APPEAL ON MERITS AFRESH. 7. IN THE RESULT, APPEAL FILED BY ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNC ED IN THE OPEN COURT ON 26 TH OCTOBER, 2017. SD/ - (D. MANMOHAN) VICE PRESIDENT HYDERABAD, DATED: 26 TH OCTOBER , 2017 OKK, SR.PS 4 COPY TO 1. MOHD. AFZAL, ADVOCATE, 11 - 5 - 465, SHERSONS RESIDENCY, FLAT NO.402, CRIMINAL COURT ROAD, RED HILLS, HYDERABAD 500 004. 2. ITO (INTERNATIONAL TAXATION) - II, AAYAKAR BHAVAN, HYDERABAD. 3. CIT(A) - 10 , HYDERABAD. 4. CIT (IT) (SZ), BENGALURU. & CIT (IT & TP), HYDERABAD. 5. D.R. ITAT A BENCH, HYDERABAD. 6. GUARD FILE