M/s. Dalmia Consumer Care (P) Ltd., Delhi V. ACIT, New Delhi

ITA 1895/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61677 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-05-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 18-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURYA VANSHISR
• Assessee Lawyers: PRAKASH K GUPTAC A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI)- BEFORE SHRI, G.D.AGRAWAL, HONBLE VICE-PRESIDENT AND SHRI,RAJPAL YADAV,JUDICIAL MEMBER ITAT NO. 1895/DEL/2011 (ASSESSMENT YEAR: 2007-08) DALMIA CONSUMER CARE(P) LTD. ACIT ,CIRCLE-10(1) PROPERTY NO. 660, KHASRA NO.1116 NEW DELHI OPP.K-BLOCK, BHILASWA VILLAGE, JAHANGIR PURI DELHI. (PAN:AABCD7397K) (APPELLANT) V/S (RESPONDENT) ASSESS BY : SH.PRAKASH K.GUPTA,C.A REVENUE BY :SH.SURYA VANSHI,SR.DR ORDER PER RAJPAL YADAV,JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT (A),DATED 24 TH JAN 2011, PASSED FOR ASSESSMENT YEAR 2007-2008.THE ASSESSESE HAS TAKEN 9 GROUNDS OF APPEAL, HOWEVER, IN GROUND NO.1,IT HAS PLEADED THAT LEARNED CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF ASSESSEE FOR THE REASON TH AT IT IS NOT A VALID APPEAL, BECAUSE IT HAS NOT BEEN SIGNED BY THE AUTHORIZED PERSON. 2. SH.PRAKASH K.GUPTA,C.A POINTED OUT THAT ASSESSES EE COMPANY WAS IN LIQUIDATION WHEN NOTICE U/S 143 (2) FOR SCRUTINIZING THE RETURN OF ASSESSEE WAS ISSUED AND SERVED UPON IT. THE ASSESSMENT WAS PASSE D ON 11.12.2009. A COMPANY PETITION BEARING NO. 66 OF 2006 AT THE INSTANCE OF PAHARPUR,3P V/S DALMIA CONSUMER CARE 2 PRIVATE LTD. WAS PENDING IN THE HONBLE DELHI HIGH COURT. FOR AY 07-08 AN APPLICATION WAS MOVED FOR DIRECTING THE OFFICIAL LIQUIDATOR TO CONTEST THE INCOME TAX PROCEEDING. THIS APPLICATION BEARING NO. 849/2011, IN COMPANY P ETITION NO.66/2006 WAS DISPOSED OF ON 17 TH OF AUGUST 2011.THE HONBLE HIGH COURT HAS APPOINTE D M/S SH. VED GUPTA AND ASSOCIATE, CHARTERED ACCOUNTANTS TO CONTEST THE PRO CEEDING ON BEHALF OF THE RESPONDENT COMPANY IN LIQUIDATION. HE PLACED ON RECORD COPIES OF BOTH THE ORDERS PASSED BY HONBLE DELHI HIGH COURT. HE SUBMITTED THAT THE DEPUTY OFFI CIAL LIQUIDATION HAS AUTHORIZED HIM TO APPEAR BEFORE THE TRIBUNAL ON BEHALF OF THE ASSESSE E COMPANY. 3. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT LEARNED CIT(A) HAS DISMISSED THE APPEAL OF ASSESSEE ON THE GROUND THAT APPEAL MEMO HAS NOT BEEN SIGNED BY THE AUTHORIZED PERSON IE. MANAGING DIRECTOR OR BY A NY DIRECTOR, SIMILARLY IT WAS NOT SIGNED AND VERIFIED BY THE LIQUIDATOR, ALL THESE THINGS HA S HAPPENED BECAUSE ASSESSMENT ORDER WAS NOT SERVED ON THE OFFICIAL LIQUIDATOR NOR ANY B ODY WAS THEIR TO LOOK AFTER THE PROCEEDINGS. HE PRAYED THAT ORDER OF THE LEARNED CI T (A) MAY PLEASE BE SET ASIDE, AND ASSESSEE BE PERMITTED TO PROSECUTE THE APPEAL IN A CCORDANCE WITH LAW. THE LEARNED DR. ON THE OTHER HAND SUBMITTED THAT ASSESSEE OUGHT TO HAVE TAKEN CARE ABOUT THE PROCEDURAL ASPECTS WELL IN TIME. 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. FROM PERUSAL OF THE HONBLE HIGH COURTS ORDER, IT EMERGES OUT THAT A COMPANY PETITION WAS FILED IN 2006 AGAINST THE ASSESSEE. IT WAS UNDER LIQUIDATION, THE OFFICIAL LIQUIDATOR HAS NOT TAKEN CARE ABOUT THE INCOME TAX PROCEEDINGS OF THE ASSESSEE . THERE CANNOT BE ANY DELIBERATE ATTEMPT AT THE END OF ASSE SSEE FOR NOT FILING THE APPEAL MEMORANDUM IN ACCORDANCE WITH LAW, BECAUSE ASSESSEE WILL NOT GET ANY BENEFIT BY 3 COMMITTING SUCH TYPE OF DEFAULT. IT HAS HAPPENED FO R THE REASON THAT IT WAS UNDER LIQUIDATION, AND THE INCOME TAX PROCEEDING WERE NOT HANDLED PROPERLY BEFORE THE LEARNED FIRST APPELLATE AUTHORITY. CONSIDERING THE EXPLANAT ION OF THE ASSESSEE AND THE APPOINTMENT OF CHARTERED ACCOUNTANT TO PROSECUTE THE PROCEEDING S BEFORE THE INCOME TAX AUTHORITY, WE DEEM IT APPROPRIATE THAT THE ENDS OF JUSTICE WO ULD MET, IF WE ALLOW THE APPEAL OF ASSESSEE AND REMIT ALL THESE ISSUES TO THE FILE OF LEARNED FIRST APPELLATE AUTHORITY FOR ADJUDICATION AFRESH. THE ASSESSEE IS DIRECTED TO FI LE FRESH MEMORANDUM OF APPEAL INCLUDING FORM NO. 35 BEFORE THE LEARNED FIRST APPE LLATE AUTHORITY, WHICH SHOULD BE DULY SIGNED BY AUTHORIZED PERSON. LEARNED FIRST APPELLAT E AUTHORITY SHALL DECIDE THE APPEAL AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE A SSESSEE. IN THE RESULT APPEAL OF THE ASSESSSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF MAY, 2012. SD/- SD/- (G.D AGRAWAL) (RAJPAL YADAV) VICE PRESIDENT JUDICIAL MEMBE DATED THE 25 TH DAY OF,2012 S.SINHA COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. CIT(ITAT),NEW DELHI. AR,ITAT NEW DELHI. 4