NIRBHIKA RAMESH PARSANI, MUMBAI V. ITO 12(2)(2), MUMBAI

ITA 2112/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3686 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 02-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-03-2012
• Court: TRIBUNAL
• Department Lawyers: MAURYA PRATAPDR
• Section: 143(3)

Judgement Text

, , B, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.2112/MUM/2012 ASSESSMENT YEAR: 2008-09 NIRBHIKA RAMESH PARSANI, 2 ND FLOOR, BROACHA HOUSE, GARDEN RD, OFF COLABA, CAUSEWAY MUMBAI-400005 / VS. ITO 12 (2) ( 2 ) AAYAKAR BHAVAN, M.K. RD. MUMBAI- (ASSESSEE ) (REVENUE ) P.A. NO. ABCPP4009K !' / ASSESSEE BY MS. AARTI SATHE (AR) / REVENUE BY SHRI MAURYA PRATAP (DR) # $ % & / DATE OF HEARING : 20/04/2016 % & / DATE OF ORDER: 29/04/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), MUMBAI- 23 {(IN SHORT CIT(A)}, DATED 29.02.2012 PASSED AG AINST NIRBHIKA RAMESH PARSANI 2 ASSESSMENT ORDER U/S 143(3) DATED 16.12.2010 FOR TH E ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS: 1.THE COMMISSIONER OF INCOME-TAX (APPEALS) (HEREINAFTER REFERRED AS 'THE CIT (A)') ERRED IN RE JECTING THE APPEAL FILED BY THE APPELLANT ON A MERE TECHNICAL G ROUND, BY DISREGARDING THE FACT THAT THE DEFECT IN THE APP EAL OF NON-PRODUCTION OF POWER OF ATTORNEY WAS A CURABL E DEFECT UNDER THE PROVISIONS OF THE INCOME-TAX ACT, 1961 (HEREAFTER 'THE ACT'). THE IMPUGNED ORDER IS LIABLE TO BE SET ASIDE ON THIS GROUND ALONE. 2. THE CIT (A) ERRED IN NOT APPRECIATING THAT THE P OWER OF ATTORNEY IN FAVOUR OF THE FATHER OF THE APPELLANT AUTHORIZING HIM TO ATTEND PROCEEDINGS ON BEHALF OF THE APPELLANT WAS PRODUCED BEFORE THE ASSESSING OFFICER (A.O.) AT THE TIME OF ASSESSMENT. THE IMPUGNED ORDE R HAS BEEN PASSED ON A COMPLETE NON-APPLICATION OF MIND AND IS LIABLE TO BE SET ASIDE. IT IS SUBMITTED THAT THE POWER OF ATTORNEY WAS SUFFICIENT ENOUGH TO SHOW THAT THE APPELLANT WAS PERSONALLY UNABLE TO ATTEND THE HEARING. 3.THE CIT(A) ERRED IN NOT APPRECIATING THAT THE APP ELLANT HAS A VERY GOOD CASE ON MERITS AND THE ADDITIONS MA DE BY THE A.O. WERE UNCALLED FOR AND NOT WARRANTED IN THE FACTS OF THE CASE. IT IS SUBMITTED THAT THE APPELLA NT HAS MADE DETAILED SUBMISSIONS ON THE MERITS OF THE CASE BEFORE THE A.O. AND THE ADDITIONS ARE NOT JUSTIFIAB LE. THE APPELLANT SUBMITS THAT THE FOLLOWING ADDITIONS :- 1) INTEREST EXPENSES DISALLOWED RS.3,8 1,579/ - 2) ADDITION IN CAPITAL ACCOUNT RS.2,62,659/- ARE NOT JUSTIFIABLE IN THE FACTS OF THE PRESENT CAS E. THE CIT (A) BY NOT AFFORDING AN OPPORTUNITY TO THE APPE LLANT TO MAKE SUBMISSIONS ON MERITS HAS PASSED THE IMPUGNED ORDER IN VIOLATION OF THE PRINCIPLES OF NA TURAL JUSTICE. 5.THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MODIFY AND /OR CANCEL ANY OF THE ABOVE REFERRED GRO UNDS OF APPEAL.' NIRBHIKA RAMESH PARSANI 3 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y MS. AARTI SATHE, AUTHORISED REPRESENTATIVE (AR) ON BEHALF OF THE ASSESSEE AND BY SHRI MAURYA PRATAP, DEPARTMENTA L REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. 3. DURING THE COURSE OF HEARING LD. COUNSEL SUBMITTED THAT APPEAL WAS DISMISSED BY THE LD. CIT(A) ON THE GROUN D THAT APPEAL WAS SIGNED BY THE POWER OF ATTORNEY HOLDER W HO WAS ALLEGEDLY NOT COMPETENT TO SIGN THE APPEAL, AND THE LD. CIT(A) WITHOUT GRANTING ANY OPPORTUNITY DISMISSED THE APPE AL AS UN- ADMITTED MERELY, ON THE GROUND THAT POWER OF ATTORN EY WAS NOT FILED WITH THE APPEAL. ON THE OTHER HAND, LD. DR DI D NOT MAKE ANY SERIOUS OBJECTIONS TO THE SUBMISSIONS MADE BY T HE LD. COUNSEL OF THE ASSESSEE. 3.1. WE HAVE GONE THROUGH THE ORDER PASSED BY THE LD. C IT(A), IT IS NOTED THAT APPEAL HAS BEEN DISMISSED BY HIM. MERELY ON THE GROUND THAT APPEAL WAS SIGNED BY THE POWER OF A TTORNEY HOLDER AND NOT BY THE ASSESSEE HERSELF, AND SINCE P OWER OF ATTORNEY WAS NOT FILED WITH THE APPEAL AND ASSESSEE DID NOT FILE ANY EVIDENCES TO SHOW THAT SHE WAS ABSENT FROM INDI A DURING THE RELEVANT TIME, THE APPEAL WAS DISMISSED BY THE LD. CIT(A). 3.2. IN OUR CONSIDERED VIEW, THE APPROACH OF THE LD. CI T(A) HAS BEEN HIGHLY UNREASONABLE AND UNFAIR. ABSENCE OF SIG NATURES BY THE COMPETENT PERSON IS A CURABLE DEFECT. THE AP PEAL MEMO (IN FORM NO.35) WAS ADMITTEDLY SINGED BY SOMEONE, O THER THAN THE ASSESSEE, IN THE CAPACITY AS POWER OF ATTORNEY HOLDER. IF THE NIRBHIKA RAMESH PARSANI 4 LD. CIT(A) OBSERVED THAT THE SAID PERSON WAS NOT CO MPETENT TO SIGN THE APPEAL MEMO, THEN, IT WAS ACCEPTED FROM HIM TO AT LEAST GIVE AN OPPORTUNITY TO THE ASSESSEE TO CURE THE DEFECT GETTING IT SIGNED EITHER FROM THE ASSESSEE H ERSELF OR BY PROVIDE THE POWER OF ATTORNEY AND OTHER REQUISIT E DETAILS AND DOCUMENTARY EVIDENCES SO AS TO MAKE COMPLIANCE OF LAW IN THE MOST APPROPRIATE MANNER. THE REQUIREMENT OF THE LAW OF PUTTING SIGNATURE BY THE COMPETENT PERSON UPON THE APPEAL MEMO IS UNDOUBTEDLY A MANDATORY REQUIREMENT. BUT AT THE END OF THE DAY, IT REMAINS MERELY A PROCEDURE REQUI REMENT AND IT DOES NOT LAY DOWN THE SUBSTANTIVE LAW. IN OT HER WORDS, TAX LIABILITY CANNOT BE FINALLY DETERMINED AND FAST ENED UPON THE ASSESSEE MERELY, ON THE GROUND THAT AT THE TIME OF FILING OF THE APPEAL, THE APPEAL MEMO WAS NOT SIGNED BY THE P ERSON WHO WAS NOT COMPETENT TO SIGN UNDER THE LAW AS PER THE VIEWS OF THE LD. CIT(A). IF SUCH AN APPROACH IS FOLLOW WH ILE DECIDING THE APPEAL BY THE APPELLATE AUTHORITIES AS HAS BEEN FOLLOWED WHILE PASSING THE IMPUGNED ORDER, THEN FAITH OF TAX PAYER UPON THE JUDICIAL SYSTEM OF OUR COUNTRY SHALL DEFIN ITELY FADE AWAY. IT HAS LED TO MISUSE OF THE GOVERNMENT MACHIN ERY AND ALSO CAUSED HARDSHIP TO THE TAXPAYER. IN OUR HUMBLE OPINION, SUCH KIND OF UNREASONABLE AND HARSH APPROACH MUST B E AVOIDED. 3.3. KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE WE SEND THIS APPEAL BACK TO THE FILE OF THE LD . CIT(A) WITH THE DIRECTIONS TO GIVE ADEQUATE OPPORTUNITY OF HEAR ING TO THE ASSESSEE TO REMOVE THE AFORESAID DEFECT OR ANY OTHE R DEFECT OF NIRBHIKA RAMESH PARSANI 5 SIMILAR NATURE THAT MAY COME TO THE NOTICE OF THE L D CIT(A) AND THIS APPEAL SHOULD BE DECIDED ON MERITS OF THE ISSUES AFTER GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSES SEE. THE ASSESSEE IS FREE TO TAKE OF ALL LEGAL AND FACTUAL I SSUES BEFORE THE LD. CIT(A). THE ASSESSEE SHALL ALSO EXTENT REQUISI TE COOPERATION TO LD. CIT(A) BY PROVIDING REQUISITE DE TAILS AND DOCUMENTARY EVIDENCES AS MAY BE REQUIRED BY THE LD. CIT(A) TIME TO TIME, AS PER LAW. THUS, THIS APPEAL MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE M AY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL, 2016. SD/- (JOGINDER SINGH) SD/- (ASHWANI TANEJA) '# / JUDICIAL MEMBER $# / ACCOUNTANT MEMBER # $ MUMBAI; ( DATED 29/04/2016 CTX? P.S/. . . %'&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / # 0 ( * ) / THE CIT, MUMBAI. 4. / / # 0 / CIT(A)- , MUMBAI 5. 34 - , / *& 5 , # $ / DR, ITAT, MUMBAI 6. 6! 7$ / GUARD FILE. / BY ORDER, NIRBHIKA RAMESH PARSANI 6 .3* - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI