M/S Manjusha Medical & research Centre, Faizabad V. ITO-I, Faizabad

ITA 235/LKW/2011

• Counselvise Citation: 23523714 RSA 2011
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 04-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Assessee Lawyers: S K MISHRA
• Keywords: Opportunity of being heard
• Section: 45(2); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO.235(LKW.)/2011 A.Y.: 2004-05 M/S.MANJUSHA MEDICAL & VS. THE ITO-I, RESEARCH CENTRE, CIVIL LINES, FAIZABAD. FAIZABAD. PAN AANFM1128L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MISHRA, ADVOCATE RESPONDENT BY : SHRI P.K.BAJAJ, SR.D.R. DATE OF HEARING : 11.8.2011 DATE OF PRONOUNCEMENT : 11.8.2011 O R D E R PER H.L.KARWA, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-II, LUCKNOW DATED 18.1.2011 RELATING TO THE ASSESSMENT YEAR 2004-05. 2. GROUND NO.1 OF THE APPEAL READS AS UNDER : 1. THE GROUNDS OF REJECTION OF THE APPEAL ARE NEITHER APPROPRIATE, NOR IT MAINTAIN THE NATURAL LAW OF SEASONED JUSTICE. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM. THE FIRM STARTED ITS WORK FROM 20.8.2003. DR. G.K.PANDEY 2 (ORTHOPAEDIC SURGEON) AND DR.MANJUSHA PANDEY (GYNAECOLOGIST) ARE THE PARTNERS, EACH HAVING 50% SHARE. IN THIS CASE, THE AO FRAMED THE ASSESSMENT UNDER SECTION 143(3) OF THE I.T.ACT,1961 (IN SHORT THE ACT) ON 26.12.2006 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.31,47,960 AS AGAINST DECLARED LOSS OF RS.3,79,093. 4. THE ASSESSEE CHALLENGED THE ABOVE ORDER BEFORE THE LD.CIT(A) IN APPEAL AND THE LD.CIT(A) VIDE ORDER DATED 18.1.2011 DISMISSED THE APPEAL OF THE ASSESSEE OBSERVING AS UNDER : 4.1 I HAVE GONE THROUGH THE ABOVE FACTS. FROM THE PERUSAL OF FORM NO.35, IT IS NOTICED THAT THE GROUNDS OF APPEAL HAS BEEN SIGNED BY DR. G.K. PANDEY, ONE OF THE PARTNER OF THE APPELLANT FIRM ON 03.02.2007. HOWEVER, THE VERIFICATION PART OF THE FORM NO.35 HAS BEEN SIGNED ON 03.02.2007 BY ONE SHRI SACHINDRA KUMAR MISHRA, IN THE CAPACITY OF AN ADVOCATE OF THE APPELLANT-FIRM. THUS, THE FORM OF VERIFICATION OF FORM NO.35 HAS NOT BEEN SIGNED BY A PERSON IN ACCORDANCE WITH THE PROVISIONS OF RULE 45(2) OF THE IT. RULES, 1962. THE PROVISIONS OF RULE 45(2) ARE REPRODUCED AS UNDER: 'FORM OF APPEAL TO COMMISSIONER (APPEALS) 45 (2) THE FORM OF APPEAL PRESCRIBED BY SUB-RULE (1) , THE GROUNDS OF APPEAL AND THE FORM OF VERIFICATION APPENDED THERETO RELATING TO AN ASSESSES SHALL BE SIGNED AND VERIFIED BY THE PERSON WHO IS AUTHORIZED TO SIGN THE RETURN OF INCOME UNDER SECTION 140 OF THE INCOME-TAX ACT, 1961, AS APPLICABLE TO THE ASSESSEE. THE APPELLANT HAS SIGNED THE GROUNDS OF APPEAL ON 03.02.2007 AND FORM OF VERIFICATION OF APPEAL MEMO HAS BEEN SIGNED BY SHRI SACHINDRA KUMAR MISHRA, IN THE CAPACITY OF AN ADVOCATE OF THE APPELLANT-FIRM ON THE SAME DATE I.E. ON 03.02.2007. SRI SACHINDRA KUMAR MISHRA IS NOT AN AUTHORIZED PERSON TO SIGN THE FORM OF VERIFICATION ON BEHALF OF THE APPELLANT-FIRM. THUS, THE APPEAL MEMO HAS NOT BEEN PREPARED AND FILED AS PER PROVISIONS OF INCOME TAX ACT, 1961 AND INCOME 3 TAX RULES, 1962, AND ACCORDINGLY NOT MAINTAINABLE. THE APPELLANT HAS NOT SHOWN ANY REASONS FOR DOING SO. 4.2 UNDER THESE FACTS AND CIRCUMSTANCES, THE GROUNDS OF APPEAL CANNOT ADJUDICATED UPON SINCE THE APPEAL HAS NOT BEEN FILED AS PER LAW. THEREFORE, THE APPEAL IS DISMISSED AS NOT FOUND MAINTAINABLE. 5. NOW, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A) DATED 18.1.2011. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. SHRI S.K.MISHRA, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE ON THE GROUND THAT THE APPEAL MEMO HAS NOT BEEN PREPARED AND FILED AS PER THE PROVISIONS OF THE INCOME-TAX ACT,1961 AND THE INCOME-TAX RULES, 1962. SHRI S.K.MISHRA, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE LD.CIT(A) HAS MENTIONED IN HIS ORDER THAT THE ASSESSEE HAS SIGNED THE GROUNDS OF APPEAL ON 3.2.2007 AND FORM OF VERIFICATION OF APPEAL MEMO HAS BEEN SIGNED BY SHRI S.K.MISHRA, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE IN THE CAPACITY OF AN ADVOCATE OF THE ASSESSEE-FIRM ON THE SAME DATE I.E. ON 3.2.2007. SHRI S.K.MISHRA, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT, IF ANY, IN THE MEMORANDUM OF APPEAL BEFORE DISMISSING THE APPEAL OF THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THAT THE ORDER OF THE LD.CIT(A) IS BAD IN LAW AND THUS, LIABLE TO BE SET ASIDE. ON THE OTHER HAND, SHRI P.K.BAJAJ, LD. SR. D.R RELIED ON THE ORDER OF THE LD.CIT(A) AND FURTHER SUBMITTED THAT VERIFICATION PART OF FORM NO.35 WAS NOT SIGNED BY A PERSON IN ACCORDANCE WITH THE PROVISIONS OF RULE 45(2) OF 4 THE INCOME-TAX RULES, 1962. HE, THEREFORE, SUBMITTED THAT THE LD.CIT(A) WAS JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. IN OUR OPINION, THE LD.CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE ON THE GROUND OF A TECHNICAL DEFECT IN MEMORANDUM OF APPEAL. IN VIEW OF SETTLED LEGAL POSITION, THE LD.CIT(A) SHOULD HAVE GIVEN AN OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT HAVING FOUND IN THE MEMORANDUM OF APPEAL. THE LD.CIT(A) HIMSELF HAS ADMITTED THAT STATEMENT OF FACTS AND GROUNDS OF APPEAL WERE SIGNED BY SHRI G.K.PANDEY, ONE OF THE PARTNERS OF THE ASSESSEE-FIRM. IN OUR CONSIDERED VIEW, THE LD.CIT(A) HAS TAKEN AN EXTREMELY HYPER-TECHNICAL VIEW WHILE HOLDING THE APPEAL TO BE NOT VALID. THIS ACTION OF THE LD.CIT(A) IS NOT SUSTAINABLE. IN THE CASE OF CIT VS. O.C..M.(INDIA) LTD. (2007) 291 ITR 96 (P & H), THE HON'BLE PUNJAB & HARYANA HIGH COURT HELD THAT THE APPEAL CANNOT BE DISMISSED ON THE GROUND OF A TECHNICAL DEFECT IN MEMORANDUM OF APPEAL. IN THAT VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND REMAND THE MATTER TO THE LD.CIT(A) WITH A DIRECTION TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT, IF ANY, IN THE MEMORANDUM OF APPEAL (FORM NO.35). THEREAFTER, THE LD.CIT(A) SHOULD DECIDE THE APPEAL OF THE ASSESSEE ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6.1. SINCE WE HAVE SET ASIDE THE ORDER OF THE LD.CIT(A) AND THE MATTER STANDS RESTORED TO THE FILE OF THE LD. CIT(A) AND THEREFORE, WE DO NOT THINK IT 5 NECESSARY TO DECIDE THE GROUNDS RAISED BY THE ASSESSEE ON MERITS. 7. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11.8.2011. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT AUGUST 11TH, 2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.