Suvistas Software Pvt.Ltd.Hyd, Hyderabad V. ITO, Ward-3(2), Hyderabad

ITA 1648/HYD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7618 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 15-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P MOHAN REDDY
• Assessee Lawyers: S RAMA RAO
• Section: 45(2); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO.1648/HYD/11 (ASSESSMENT YEAR 2003 - 04) M/S. SUVISTAS SOFTWARE PVT. LTD., HYDERABAD ( PAN - AAE CS 9112 N ) V/S. INCOME TAX OFFICER WARD 3(2), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : S HRI S.RAMA RAO RESPONDENT BY : SHRI P.MOHAN REDDY DR DATE OF HEARING 12 .0 8 .2014 DATE OF PRONOUNCEMENT 20.08.2014 O R D E R PER P.M.JAGTAP, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRE C TED AGAINST THE O R DER OF THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) IV, HYDERABAD DATED 30.11.2007, WHEREBY HE CONFIRMED THE PENALTY OF R S .2,77,039 IMPOSED BY THE ASSESSING OFFICER UN D ER S.271(1)(C) OF THE INCOME TAX ACT,1961. 2. AS NOTED AT THE OUTSET, THERE IS A DELAY OF 1,325 DAYS ON THE P A RT OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL AND THE ASSESSEE HAS MOVED AN APPLICATION IN WRITING SE E KIN G CONDONATION OF THE SAID DELAY. AT THE TIME OF HEARING, IT IS ALSO NOTED THAT THIS APPEAL O F THE ASSESSEE COMPANY IS SIGNED AND VERI F IED BY SHRI R.SUBBA RAO, FORMER M ANAGING D IRECTOR, AND A S SUCH, A QUESTION ALSO ARISES WITH REGARD TO THE MAINTAINABILITY OF THIS APPEAL. IN THIS REGARD, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HA T THE RETURN O F INCOME OF TH E ASSESSEE - COMPANY FOR THE YE A R UNDER CONSIDE R ATION WAS SIGNED BY S H R I R.SUBBA R AO, WHO I TA NO. 1648/H YD/201 1 M/ S.SUVISTAS SOFTWARE PVT. LTD., HYDERABAD 2 WAS THEN THE DI R ECTOR OF THE ASSESSEE COMPANY. RELYING ON THE PROVISIONS OF RULE 45(2) OF THE INCOME - TAX RULES, 1962 READ WITH S.140, HE CONTENDED THAT SHRI R.SUBBA RAO IS DULY AUTHORIZED TO SIGN THE PRESENT APPEAL FILED BY THE COMPANY , E VEN THOUGH HE RESIGNED FROM THE MANAGING DIRECTORSHIP OF THE ASSESSEE COMPANY ON 23 RD DECEMBEER, 2002 AND FROM THE D IRECTORSHIP OF THE ASSESSEE COMPANY ON 2 ND J UNE, 2005 AND THUS , WAS NO MORE A DIREC T OR ON THE DATE OF FILING OF THE P RE SENT APPEAL. HE ALSO CONTENDED THAT A NOTICE DATED 16 TH AUGUST, 2011 WAS ISSUED BY THE ASSESSING OFFICER TO SHRI R.SUBBA RAO, REQUIRING HIM TO PAY THE IMPUGNED PENALTY IMPOSED ON THE ASSESSEE COMPANY, AND THEREFORE, HE IS AN AG G RIEVED ASSESSEE, WHO IS COMPETENT TO FIL E AN APPE AL AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER S.271(1)(C) OF THE ACT, AS PER THE PROVI S ION S OF S.253 OF THE ACT. 3. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, SUBMITTED THAT THE PRESENT APPEAL IS FILED ON 15 TH SEPTEMB E R, 2011, AND SINCE SHRI R.SUBBA RAO WAS NEITHER A DIREC T OR NOR A MAN A GING DIRECTOR OF THE ASSESSEE CO M PANY ON THAT DATE, HE IS NOT A PERSON AUTHORISED EITHER TO FILE THE R ETURN OF INCOME O F THE ASSESSEE COMPANY ON THAT DATE AS PER S.140 OF THE ACT, AND CONSEQUENTLY HE IS ALSO NO T AN AUTHO R ISED TO SI G N OR VERIFY THE PRESENT APPEAL ON BEHALF OF THE ASSESSEE CO M PANY. HE HAS CONTENDED THAT THIS APPEAL OF THE ASSESSEE COMPANY, BEING SIGNED BY AN UNAUTHORIZED PERSON, IS NO T MAINTAINABLE IN LAW . 4. WE HAVE CON S IDERED THE RIVAL SUBMI S SION S AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE APPELLANT IN THIS CASE IS A COMPANY WHICH IS RESIDENT IN I N D IA AND THE PRESENT APPEAL FI L ED ON 15 TH OCTOBER, 2011 IS SIGNED BY SHRI R. SUBBA RAO, WHO HAS RE SI GNED FROM THE POSITION OF MANAGING DIRECTOR ON 23 RD DECEMBER, I TA NO. 1648/H YD/201 1 M/ S.SUVISTAS SOFTWARE PVT. LTD., HYDERABAD 3 2002 AND FROM THE DI R ECTORSHIP ON 2 ND JUNE, 2005. THE PROVISION S DEALING WITH F ORM OF A PPEAL TO B E FILED BY A COMPANY BEFORE THE TRIBU NAL AND THE P E RSON WHO IS AUTHORIZE D TO SIGN SUCH APPEAL ARE CONTAIN E D IN RUL E 47(1) AND 45(2) OF INCOM E - TAX RULES, 1962 READ WITH S.140 OF THE ACT, WHICH , TO THE EXTENT RELEVANT FOR OUR PURPOSE, ARE REPRODUCED HEREUNDER. RULE 47 OF INCOME - TAX RULES, 1962 : FORM OF APPEAL AND MEMORANDUM OF CROSS - OBJECTIONS TO APPELLATE TRIBUNAL. 47. (1) AN APPEAL UNDER SUB - SECTION (1) OR SUB - SECTION (2) OF SECTION 253 TO THE APPELLATE TRIBUNAL SHALL BE MADE IN FORM NO. 36 , AND WHERE THE APPEAL IS MADE BY THE ASSESSEE, THE FORM OF APPEAL, THE GROUNDS OF APPEAL AND THE FORM OF VERIFICATION APPENDED THERETO SHALL BE SIGNED BY THE PERSON SPECIFIED IN SUB - RULE (2) OF RULE 45. .. RULE 45 OF INCOME - TAX RULES, 1962 : 45. (1) . (2) THE FORM OF APPEAL PRESCRIBED BY SUB - RULE (1), THE GROUNDS OF APPEAL AND THE FORM OF VERIFICATION APPENDED THERETO RELATING TO AN ASSESSEE SHALL BE SIGNED AND VERIFIED BY THE PERSON WHO IS AUTHORISED TO SIGN THE RETURN OF INCOME UNDER SECTION 140 OF THE INCOME - TAX ACT, 1961, AS APPLICABLE TO THE ASSESSEE. S.140 OF THE INCOME TAX ACT,1961 : RETURN BY WHOM TO BE SIGNED. 140. THE RETURN UNDER SECTION 139 SHALL BE SIGNED AND VERIFIED A ) IN THE CASE OF AN INDIVIDUAL, .. B ) IN THE CASE OF A HINDU UNDIVIDED FAMILY, ..; I TA NO. 1648/H YD/201 1 M/ S.SUVISTAS SOFTWARE PVT. LTD., HYDERABAD 4 C ) IN THE CASE OF A COMPANY, BY THE MANAGING DIRECTOR THEREOF, OR WHERE FOR ANY UNAVOIDABLE REASON SUCH MANAGING DIRECTOR IS NOT ABLE TO SIGN AND VERIFY THE RETURN, O R WHERE THERE IS NO MANAGING DIRECTOR, BY ANY DIRECTOR THEREOF : PROVIDED THAT WHERE THE COMPANY IS NOT RESIDENT IN INDIA, THE RETURN MAY BE SIGNED AND VERIFIED BY A PERSON WHO HOLDS A VALID POWER OF ATTORNEY FROM SUCH COMPANY TO DO SO, WHICH SHALL BE ATTA CHED TO THE RETURN : PROVIDED FURTHER THAT, ( A ) WHERE THE COMPANY IS BEING WOUND UP, WHETHER UNDER THE ORDERS OF A COURT OR OTHERWISE, OR WHERE ANY PERSON HAS BEEN APPOINTED AS THE RECEIVER OF ANY ASSETS OF THE COMPANY, THE RETURN SHALL BE SIGNED AND VER IFIED BY THE LIQUIDATOR REFERRED TO IN SUB - SECTION (1) OF SECT ION 178 ; ( B ) WHERE THE MANAGEMENT OF THE COMPANY HAS BEEN TAKEN OVER BY THE CENTRAL GOVERNMENT OR ANY STATE GOVERNMENT UNDER ANY LAW, THE RETURN OF THE COMPANY SHALL BE SIGNED AND VERIFIED BY THE PRINCIPAL OFFICER THEREOF; . 5. IT IS CLEARLY EVIDENT FROM THE REL E VANT PROVISIONS, NOTED ABOVE, THAT AN APPEAL UNDER S.253 TO THE APP EL LATE TRIBUNAL IS REQUIRED TO B E FIL E D IN THE F ORM PRESCRIBED, VIZ. FORM NO.36, AND THE SAME IS TO BE SIGNED BY THE PERSONS SPECIFIED IN S UB - RULE (2) OF RULE 45. AS PER SUB - RULE (2) OF RUL E 45, THE PRESCRIB E D FORM OF APPEAL, THE G ROU N DS OF A PP E AL AND THE F ORM OF V ERIFICATION APPENDED THERETO, ARE REQ U IRED TO B E SIGNED AND VERIFIED BY THE PERSON WHO IS AUTHORIZED TO SIGN THE RETURN O F INCOM E UNDER S .140 OF THE INCOME TAX ACT,1961. AS PER S.140 OF TH E INCOME TAX ACT,1961, THE RETURN O F IN C OM E UN D ER S.139 HAS TO BE SIGN E D AND VERIFIED, IN TH E CA S E OF A COMPANY, RESIDENT IN INDIA, BY THE MAN A GING DI RE CTOR TH E REOF, OR WHERE FOR ANY INEVITABLE R EASON SUCH M ANAGING D IRECTOR IS NO T ABLE TO SIGN AND VERIFY THE RETURN OR WHERE THERE IS NO MANAGING D IRECTOR, BY ANY DIRECTOR THEREOF. A COMBINED READING OF THESE RELEVAN T PROVISION S MAKES IT ABUNDANTLY CLEAR THAT THE PERSON WHO IS THE MAN A GING D IRECTOR OF THE ASSESSEE COMPANY, I TA NO. 1648/H YD/201 1 M/ S.SUVISTAS SOFTWARE PVT. LTD., HYDERABAD 5 OR ITS DIRECTOR IN CERTAIN CIRCUMSTANCES, ON THE DATE OF THE FILING OF THE R E TURN ONLY CAN SIGN AND V E RIFY THE RETURN IN TH E CA S E OF A COMPANY, IT TH E R E FORE, FOLLO W S THAT A PERSON WHO IS MANAGING D IRECTOR OR DIRECTOR , AS THE CA S E MAY B E, OF THE COMPANY, ON THE DATE OF FILING O F THE APPEAL BEFORE THE TRIBUNAL IS ONLY AUHO R ISED TO SIGN AND VERIFY THE APPEAL FILED BEFORE THE TRIBUNAL IN TH E CA S E OF A COMPANY. IN THE P RE SEN T CA S E, SHRI R.SUBBA RA O WAS NEIT HER MANAGING DIRECTOR NOR DI R ECTOR OF THE ASSESSEE COMPANY AS ON 15 TH DAY OF SEP T EMB E R, 2011 WHEN THE PRESENT APP E AL WAS FILED IN TH E CASE OF THE ASSESSEE - COMPANY. IN OUR CONSIDERED OPINION , HE, TH E R E FORE, IS NO T AN AUTHORIZED PERSON TO SIGN AND VERIFY THE PRESENT APPEAL FILED IN THE CASE OF THE APPELLANT COMPANY. THE SAID APPEAL, NOT SIGNED AND VERIFIED BY AN AUTHORIZED PERSON, IS NO T MAINTAINABLE IN LAW, AS RIGHTLY CONTENDED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, AND THE SAME, IN OUR OPINION, IS LIABLE TO BE DISMISSED A T THE VERY THRESHOLD. 6. AS REGARDS THE OTHER CONTENTION R AISED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT SHRI R.SUBBA RAO, HAVING BECOME LIABLE TO PAY THE IMPU G N E D PENALTY IMPOSED UN D ER S.271(1)(C) BY THE ASSESSING OFFICER , HAS TH E RIGHT TO FIL E AN APPEAL BEFORE THE TRIBUNAL, B E ING AN AGGRIEVED PARTY, AGAINST THE ORDER OF THE LEARNED CIT(A) CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER, WE ARE O F THE VIEW THAT THE RIGHT O F APPEAL TO THE TRIBUNAL IS NOT CONFINED T ECHNICALLY TO THE PARTY WHO IS A PARTY TO THE APP E AL, B UT IS A MUCH WIDER RIGHT WHICH CAN BE EXERCISED BY ANY PERSON, WHO BECOMES LIABLE TO PAY TAX BY ANY ORDER AGAINST WHICH THE APPEAL IS PREFERRED. HOWEVER, IN SUCH A CA S E, EVEN IF SHRI SUBBA RAO CAN BE SAID TO BE AN AGGRIEVED ASSESSEE H A VI N G BECOME LIABLE TO PAY THE TAX/PENALTY IN HIS INDIVIDUAL CAPACITY, HE CAN EX E R C ISE THE RIGHT TO FIL E THE APPEAL BEFORE THE TRIBUNAL IN HIS INDIVI D UAL CAPACITY IN ACCORDAN C E W I T H LAW, BUT H E CANNOT FILE AN APPEAL IN TH E NAME OF I TA NO. 1648/H YD/201 1 M/ S.SUVISTAS SOFTWARE PVT. LTD., HYDERABAD 6 THE ASSESSEE CO M PANY, SIN C E HE IS NOT AUTHO R ISED TO DO SO, AS HELD BY US AFTER ANALYISING THE RELEVANT PROVI S ION S OF LAW. 7. FOR THE REASONS GIVEN ABOVE, WE H OLD THAT THE PRESENT APPEAL FILED IN THE C ASE OF THE ASSESSEE - COMPANY IS NOT MAINTAINABLE AND THE SAME IS ACCORDINGLY DISMISSED AT THE THRESHOLD. IN VIEW OUR DECISION ON THE ASPECT OF MAINTAINABILITY OF THIS APPE A L, WE DO NO T CONSIDER IT NECESSARY OR EXPEDIENT TO DEAL WITH OTHER ISSUES INVOLVED IN THIS CA S E, INCLUDING THE I SSUE OF CONDONATION OF DELAY. 8. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 20 TH AUGUST, 2014 SD/ - SD/ - ( ASHA VIJAYARAGHAVAN ( P.M.JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/ - 20 TH AUGUST, 2014 COPY FORWARDED TO: 1. M/S. SUVISTAS SOFTWARE PVT. LTD., C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3 - 6 - 643, STREET NO.9, HIMAYATNAGAR, HYDERABAD 500029 2 . INCOME TAX OFFICER WARD 3(2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) IV HYD ERABAD 4. COMMISSIONER OF INCOME - TAX III HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S I TA NO. 1648/H YD/201 1 M/ S.SUVISTAS SOFTWARE PVT. LTD., HYDERABAD 7