CHIKA OVERSEAS P.LTD, MUMBAI V. DCIT RG 1(1), MUMBAI

ITA 2835/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8279 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 15-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 12-05-2015
• Court: TRIBUNAL
• Department Lawyers: MRS BEENA SANTOSH
• Keywords: Opportunity of being heard; Period of limitation; Procedural lapse

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G , MUMBAI BEFORE SHRI CN PRASAD , JUDICIAL MEMBER AND SHRI ASHWANI TANEJA , ACCOUNTANT MEMBER ITA NO. 2835 /MUM/201 5 : (A.Y : 20 10 - 11 ) M/S CHIKA OVERSEAS P.LTD INDL.ASSURANCE BLDG. 5 TH FLOOR, VEE NARIMAN ROAD CHURCHGATE MUMBAI PAN : AAACC2178A ( / APPELLANT) VS. DCIT RG 1(1) R.NO.579, 5 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI 400 0 2 0 ( / RESPONDENT) / A PPELLANT BY : MS. ARATI VISSANJI REVENUE BY : MRS BEENA SANTOSH / DATE OF HEARING : 15 / 02 /201 7 DATE OF PRONOUNCEMENT : 22 / 02/2017 / O R D E R PER C.N.PRASAD (J.M.) : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (APPEALS) - 2 , MUMBAI DATED 29 . 0 1 .201 5 FOR THE ASSESSMENT YEAR 20 10 - 11. 2. THE ASSESSEE CHALLENGED THE ORDER OF THE LD. CIT (APPEALS) IN DISMISSING THE APPEAL OF THE ASSESSEE, HOLDING THAT FORM 35 AND GROUNDS OF APPEAL WERE 2 M/S CHIKA OVERSEAS PVT. LTD. ITA NO . 2835 /MUM/201 5 SIGNED BY THE JOINT MANAGING DIRECTOR AND NOT BY THE MANAGING DIRECTOR OF THE COMPANY AND FORM 35 AND GROUNDS OF APPEAL SIGNED BY THE MANAGING DIRECTOR WHICH WAS FILED DURING THE COURSE OF A PPELLATE PROCEEDINGS CANNOT BE TAKEN AS IF THE APPEAL FILED EARLIER AND THERE IS INORDINATE DELAY OF ALMOST TWO YEA RS IN FILING THE APPEAL AND THEREFORE DELAY CANNOT BE CONDONED. THE ASSESSEE ALSO RAISED VARIOUS GROUNDS ON MERITS. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT FILING APPEAL WITH SIGNATURES OF JOINT MANAGING DIRECTOR IS THE ONLY IRREGULARITY WHICH C AN BE CURED AND IT IS NOT FATAL TO THE ASSESSEE. THE LD. COUNSEL SUBMITS THAT WHEN THIS DEFECT WAS POINTED OUT BY THE LD CIT (APPEALS) IN THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE FILED REVISED FORM 35 AND GROUNDS OF APPEAL WITH THE SIGNATURES OF T HE MANAGING DIRECTOR. THE LD. COUNSEL FURTHER SUBMITS THAT THE LD. CIT (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT THE REVISED FORM 35 WAS FILED BELATEDLY AFTER ALMOST TWO YEARS, THEREFORE CANNOT BE CONDONED. THE LD. COUNSEL SUBMITS THAT T HE APPEAL I.E. THE REVISED FORM 35 ALONG WITH GROUNDS OF APPEAL SIGNED BY THE MANAGING DIRECTOR FILED IN THE COURSE OF APPELLATE PROCEEDINGS RELATES BACK TO THE DATE OF APPEAL WHICH WAS OTHERWISE FILED IN TIME AND T HEREFORE, THERE IS NO JUSTIFICATION IN DI SMISSING THE APPEAL OF THE ASSESSEE ON SUCH TECHNICAL GROUND. SHE PLACES RELIANCE ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF REMFRY & SONS VS. CIT [ 276 ITR 1 ] IN SUPPORT OF HER CONTENTION THAT FILING OF APPEAL WITH THE SIGNATURE OF THE JOINT M ANAGING DIRECTOR IS ONLY AN IRREGULARITY AND IT IS NOT ILLEGAL. SHE ALSO PLACED RELIANCE ON THE 3 M/S CHIKA OVERSEAS PVT. LTD. ITA NO . 2835 /MUM/201 5 DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. HARYANA SHEET GLASS LTD. [ 318 ITR 173 ] IN SUPPORT OF HER ABOVE SUBMISSION. 4. THE LD. DR HAS NO SERIOUS OBJECTION IN SENDING THE MATTER BACK TO THE LD. CIT (APPEALS) FOR CONSIDER I N G ON MERITS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE LAWS RELIED ON. WE FIND THAT A N IDENTICAL SITUATION HA S BEEN CONSIDERED BY THE DELHI HIGH COURT IN THE CASE OF REMFRY & SONS VS CIT (SUPRA) , WHERE THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT (APPEALS) AND THE LD. CIT(APPEALS) OBJECTED THAT THE APPEAL WAS NOT SIGNED BY A COMPETENT PERSON . T HE TRIBUNAL CONFIRM ED THE VIEW TAKEN BY THE LD.CIT (APPEALS). WHEN THE MATTER REACHED THE HONBLE HIGH COURT, THE HIGH COURT HELD THAT THE IRREGULARITY COMMITTED BY THE ASSESSEE WAS CURABLE AND COULD BE RECTIFIED ON THE DATE OF ITS FILING AND EVEN SUBSEQUENT THERETO AS THE A PPEAL WAS ADMITTEDLY FILED WITHIN THE PERIOD OF LIMITATION. WHILE HOLDING SO, THE HONBLE HIGH COURT OBSERVED AS UNDER : THE EXPRESSION ILLEGAL HAS BEEN DEFINED AS BEING CONTRARY TO LAW AND IS NORMALLY APPLICABLE TO EVERYTHING WHICH IS AN OFFENCE O R WHICH IS PROHIBITED BY LAW. THIS WORD HAS AN EXTENSIVE MEANING INCLUDING ANYTHING AND EVERYTHING WHICH IS PROHIBITED BY LAW WHICH CONSTITUTES AN OFFENCE OR WHICH FURNISHES THE BASIS FOR A CIVIL SUIT. T HE EXPRESSION IN A WIDER MEANING HAS BEEN EQUATED TO UNLAWFUL , BUT IT MAY STILL NOT BE VOID. THIS EXPRESSION IS DISTINGUISHABLE FROM THE EXPRESSION IRREGULARITY WHICH IS DEFINED AS A WANT OF ADHERENCE TO SOME PRESCRIBED RULE OR MODE OF PROCEEDINGS AND PRIMARILY CONSISTS OF OMITTING TO DO WHAT IS NECESS ARY FOR DUE AND ORDERLY CONDUCT OF THE PROCEEDINGS. THE WORD ILLEGALITY ON THE OTHER HAND 4 M/S CHIKA OVERSEAS PVT. LTD. ITA NO . 2835 /MUM/201 5 DENOTES A COMPLETE DEFECT IN JURISDICTION OR PROCEEDINGS. IRREGULARITY IS AN EXPRESSION OF LESSER EFFECT AS AN ACT WHICH IS IMPROPER OR INEFFICIENT BY REASON, OR DEPARTURE FROM THE PRESCRIBED ACT . IT PRIMARILY CONNOTES THE NEGLECT OF ORDER OR METHOD AND MAY NOT BE ACCORDING TO REGULATIONS . ONE OF THE BASIC DISTINCTIONS BETWEEN THE TWO EXPRESSIONS IS THE RESULTANT EFFECT OF ITS BEING CURABLE OR INCURABLE. NORMALLY, AN ILLEGALITY WHICH GOES TO THE VERY ROOT OF THE MATTER OR JURISDICTION COULD HARDLY FALL IN THE CLASS OF THOSE CASES, BUT AN IRREGULARITY WHICH IS MERELY PROCEDURAL AND WHERE IT HAS EVEN BEEN SUBSTANTIALLY COMPLIED WITH, TO BRING SUCH A CASE WITHI N THE CLASS OF CASES WHERE IRREGULARITY IS CURABLE, WOULD BE A FAIR A ND JUST INTERPRETATION OF THE RELEVANT RULE. IN T HE CASE ON HAND BEFORE US ALSO, THE ASSESSEE INITIALLY FILED APPEAL WITHIN DUE DATE WITH THE SIGNATURES OF THE JOINT MANAGING DIRECTOR AND THIS DEFECT WHEN POINTED OUT BY THE LD.CIT (APPEALS) WAS RECTIFIED IN THE COURSE OF APPELLATE PROCEEDINGS BY FILING REVISED FORM 35 AND GROUNDS OF APPEAL DULY SIGNED BY THE MANAGING DIRECTOR. AS HELD BY THE DELHI HIGH COURT, FILING OF APPEAL WITH THE SIGNATURES OF A NON COMPETENT PERSON IS ONLY AN IRREGULARITY AND A MERE PROCEDURAL LAPSE BUT IT IS NOT FATAL TO THE APPEAL ITSELF , THE LD. CIT(APPEALS) SHOULD NOT HAVE DISMISSED THE APPEAL ON SUCH GROUND. THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION, WE RESTORE THIS APPEAL TO THE FILE OF THE LD. CIT (APPEALS) WITH THE DIRECTION TO DISPOSE OF THE APPEAL ON MERITS AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 5 M/S CHIKA OVERSEAS PVT. LTD. ITA NO . 2835 /MUM/201 5 ORDER PRONOUNCED IN THE OPEN COURT ON THE 22 ND DAY OF FEBRUARY 2017 . SD/ - SD/ - ASHWANI TANEJA C.N.PRASAD / / ACCOUNTANT MEMBER JUDICIAL MEMBER / MUMBAI; / DATED 22 / 02 / 2017 LR, SPS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, (ASSTT. REGISTRAR) , / ITAT, MUM 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. // TRUE COPY / / 6 M/S CHIKA OVERSEAS PVT. LTD. ITA NO . 2835 /MUM/201 5 DATE INITIALS 1. DRAFT DICTATED ON: SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: