THE WEST COAST PAPER MILL LTD, MUMBAI V. ACIT CIR 1(3), MUMBAI

ITA 2177/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8918 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 18-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

I.T.A NO.2177/ MUM/2010 ASSESSMENT YEAR: 2001-02 1 IN THE INCOME TAX APPELLATE TRIBUNAL, G BENCH, MUMBAI. [ CORAM: PRAMOD KUMAR, AM AND V. DURGA RAO, JM ] I.T.A NO.2177/ MUM/2010 ASSESSMENT YEAR: 2001-02 THE WEST COAST PAPER MILL LTD. .. APPELLANT SHREENIWAS HOUSE, HAZARIMAL SOMANI MARG, FORT, MUMBAI. PA NO.AAACT 4179N VS ACIT, CIRCLE 1(3) ,. RESPONDEN T AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. BASANT KAMAT, FOR THE APPELLANT PAVAN VED, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CALLED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED 4 TH DECEMBER, 2009, FOR THE ASSESSMENT YEAR 2001-02. 2. IN GROUND NO.1, THE ASSESSEE HAS CHALLENGED AGAI NST THE ORDER OF THE CIT (A) DISMISSING THE APPEAL ON THE GROUND THAT THE APPEAL MEMO HAS BEEN VERIFIED BY THE EXECUTIVE DIRECTOR INSTEAD OF MANAGING DIRECTOR OF THE COMPANY. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IN THE COURSE OF APPELLATE PROCEEDINGS, THE CIT (A) NOTICE D THAT FORM NO.35 IS SIGNED BY THE EXECUTIVE DIRECTOR OF THE ASSESSEE COMPANY INSTEAD OF MANAGING DIRECTOR OF THE COMPANY. AND NO UNAVOIDABLE REASONS HAVE BEEN MENTIONED IN T HE APPEAL MEMO AND IN THE ACCOMPANYING DOCUMENTS AS TO WHY MANAGING DIRECTOR HAS NOT DONE THE VERIFICATION. ACCORDINGLY, A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE PROPOSING TO TREAT THE APPEAL AS INVALID. BEFORE THE CIT (A) A FRESH SHOW CAUSE NOT ICE WAS SUBMITTED AND WAS CLAIMED THAT VERIFICATION IN THIS FORM NO.35 IS IN ACCORDANCE WI TH THE LAW. THE CIT (A) REJECTED FORM NO.35 AND DECLINED TO DECIDE THE APPEAL TREATING TH E SAME TO BE NON-EST. I.T.A NO.2177/ MUM/2010 ASSESSMENT YEAR: 2001-02 2 4. WE FIND THAT THE ORIGINAL APPEAL MEMO WAS NOT VE RIFIED/SIGNED BY THE MANAGING DIRECTOR AS REQUIRED UNDER THE LAW. HOWEVER, IN FR ESH FORM NO.35, THE MANAGING DIRECTOR HAD VERIFIED THE APPEAL MEMO. WE ALSO FIND THAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07, SIMILAR ISSUE CAME UP FOR CONSIDERATI ON BEFORE THE TRIBUNAL, WHEREIN, IT WAS HELD THAT FILING OF THE FRESH FORM NO.35 FOR RECTIF ICATION OF THE DEFECT IN THE EARLIER FORM DOES NOT AMOUNT OF FILING OF SECOND APPEAL BUT ONLY SUBS TITUTING OF THE EARLIER FORM FOR RECTIFICATION OF THE DEFECT AND, ACCORDINGLY, THE M ATTER WAS SET ASIDE TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION. WE ALSO FIND THAT THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF TILAKNAGAR INDUSTRIES LTD V.CIT, ORDER DATED 14 TH DECEMBER, 2010, COPY OF WHICH IS PLACED ON RECORD, WHEREIN, ALSO IT WAS HELD THAT SIGNING OF THE APPEAL MEMO BY A PERSON NOT AUTHORIZED IS ONLY AN IRREGULARITY AND THE SAME CAN BE RECTIFI ED. IN VIEW OF THIS, AND RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE HIGH COURT (S UPRA) AND ALSO THE DECISION OF A CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEA R 2006-(SUPRA), WE SET ASIDE THE ORDER OF THE CIT (A) AND REMAND BACK TO HIS FILE FOR DECI SION THE APPEAL ON MERITS IN ACCORDANCE WITH LAW. 5. SINCE WE HAVE RESTORED THE MATTER TO THE FILE OF THE CIT (A), GROUND NO.2 RAISED BY THE ASSESSEE DOES NOT REQUIRE ANY ADJUDICATION. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS T REATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2011 SD/- (V. DURGA RAO ) (JUDICIAL MEMBER) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 14 TH JANUARY, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),, MUMBAI 4. COMMISSIONER OF INCOME TAX, , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.2177/ MUM/2010 ASSESSMENT YEAR: 2001-02 3 I.T.A NO.2177/ MUM/2010 ASSESSMENT YEAR: 2001-02 4