K.M. VENKATESWARAN, MUMBAI V. ITO 6(2)(2), NEW DELHI

ITA 3268/MUM/2010

• Counselvise Citation: 326819914 RSA 2010
• Duration Of Justice: 2 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-05-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 26-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: V S JAYAKUMAR
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE SHIRI R. S. SYAL, AM AND SHRI S. S. GODARA, JM ITA NO. : 6818/MUM/2008 ASSESSMENT YEAR : 2002-03 & ITA NO. : 3268/MUM/2010 ASSESSMENT YEAR : 2002-03 SHRI K. M. VENKATESWARAN M/S. DSQ INFORMATION TECHNOLOGIES LTD., SOFTWARE CORPORATE PARK, BLOCK NO.6, IIND FLOOR, M. V. ROAD, CHAKALA, ANDHERI(E), MUMBAI-400 093 PAN NO: AABCD 4015 G VS. ITO - 6(2)(2) MUMBAI (APPELLANT) (RESPONDENT) A SSESSEE BY : SHRI V. S. JAYAKUMAR DEPARTMENT BY : SHRI P. K. B. MENON DATE OF HEARING : 03.05.2012 DATE OF PRONOUNCEMENT : 09.05.2012 ORDER PER R. S. SYAL, AM : THESE TWO APPEALS BY SHRI K. M. VENKATESWARAN HAVE BEEN FILED AGAINST THE APPELLATE ORDER EMANATING FROM THE ASSE SSMENT ORDER PASSED FOR M/S. DSQ INFORMATION TECHNOLOGIES LTD. IN RELA TION TO THE A.Y. 2002- 03. WHEREAS, ONE APPEAL IS AGAINST THE ORDER PASSE D BY THE LEARNED CIT(A) ON 26.11.2007, WHICH IS TIME BARRED BY 799 D AYS AND THE OTHER ITA NOS. 6818/MUM/2008 & 3628/MUM/2010 SHRI K. M. VENKATESWARAN 2 APPEAL IS AGAINST THE ORDER PASSED BY THE LEARNED C IT(A) ON 26.09.2008. THROUGH THESE APPEALS THE ASSESSEE WANTS RELIEF ON VARIOUS ADDITIONS SUSTAINED IN THE FIRST APPEAL. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ASSESS MENT ORDER WAS PASSED IN THE CASE OF M/S. DSQ INFORMATION TECHNOLOGIES LT D. U/S.144 R.W.S 147 ON 28.02.2005. AS AGAINST THAT ASSESSEE DECLARING LOSS IN THE RETURN FILED, THE EVENTUAL ASSESSMENT WAS MADE AT A TOTAL INCOME OF `. 13,33,440/-. THE FIRST ORDER OF THE LEARNED CIT(A) DATED 26.11.2007 HAS BEEN PASSED IN THE NAME OF M/S. DSQ INFORMATION TECHNOLOGIES LTD. THEREAFTER, SHRI K. M. VENKATESWARAN MOVED RECTIFIC ATION APPLICATION U/S.154 QUA THE ORIGINAL ORDER PASSED BY THE LEARNED CIT(A) FO R M/S. DSQ INFORMATION TECHNOLOGIES LTD. 3. BOTH THE APPEALS HAVE BEEN PREFERRED BEFORE US B Y SHRI K. M. VENKATESWARAN IN HIS INDIVIDUAL CAPACITY IN HIS OWN NAME AND NOT AS DIRECTOR OF THE COMPANY, AS IS EVIDENT FROM THE FAC T THAT THESE APPEALS HAVE BEEN PREFERRED BY SHRI K. M. VENKATESWARAN SHO WING HIMSELF AS THE ASSESSEE AND NOT M/S. DSQ INFORMATION TECHNOLOGIES LTD. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSMENT ORDER WAS PASSED BY THE A.O. CREATING CE RTAIN DEMAND IN THE NAME OF THE COMPANY. AS THE WHEREABOUTS OF THE DIR ECTORS OF THE ITA NOS. 6818/MUM/2008 & 3628/MUM/2010 SHRI K. M. VENKATESWARAN 3 ASSESSEE COMPANY WERE NOT KNOWN, THE REVENUE SOUGHT RECOVERY FROM THE ASSESSEE WHICH LEAD TO THE FILING OF THE PRESEN T APPEALS IN HIS INDIVIDUAL NAME. 5. WE ARE NOT CONVINCED WITH THE VALIDITY OF THESE APPEALS FOR THE REASON THAT THE ASSESSMENT OF M/S. DSQ INFORMATION TECHNOLOGIES LTD. HAS BEEN ASSAILED IN THE PRESENT APPEALS, BUT THE A PPELLANT HAS BEEN SHOWN AS SHRI K. M. VENKATESWARAN AND NOT THE ASSES SEE COMPANY. SECTION 253(6) MANDATES THAT AN APPEAL TO THE TRIBU NAL SHALL BE IN THE PRESCRIBED FORM AND SHALL BE VERIFIED IN THE PRESCR IBED MANNER. RULE 47 OF THE I.T. RULES, 1962 PRESCRIBES THE FORM OF APPE AL AND MEMORANDUM OF CROSS OBJECTION TO THE APPELLATE TRIBUNAL. THE FOR M PRESCRIBED FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS FORM NO.36. WHEN WE GO THROUGH THE SAID FORM NO.36, IT IS BORNE OUT THAT IT IS REQUIRE D TO BE SIGNED BY A PERSON WHO IS AUTHORISED TO SIGN THE RETURN U/S.140 . AS PER THE MANDATE OF SECTION 140, A RETURN OF INCOME OR APPEA L FORM FOR THAT PURPOSE, IS REQUIRED TO BE SIGNED BY THE MANAGING D IRECTOR OF THE COMPANY THEREOF, OR WHERE FOR ANY UNAVOIDABLE REASO N SUCH MANAGING DIRECTOR OF THE COMPANY IS NOT ABLE TO SIGN AND VER IFY THE RETURN, OR WHERE THERE IS NO MANAGING DIRECTOR, BY ANY DIRECTOR THER EOF. FROM HERE IT FOLLOWS THAT THE APPEAL HAS TO BE FILED IN THE NAME OF THE COMPANY BUT IT IS ONLY ON THE QUESTION OF SIGNING SUCH APPEAL ON BEHALF OF THE COMPANY THAT THE MANAGING DIRECTOR ETC. HAVE BEEN AUTHORIS ED TO SIGN IT. HERE IT IS ITA NOS. 6818/MUM/2008 & 3628/MUM/2010 SHRI K. M. VENKATESWARAN 4 IMPORTANT TO NOTE THAT SHRI K. M. VENKATESWARAN REM AINED THE DIRECTOR OF THE COMPANY FROM 10.03.2002 TO 02.09.2002. AT T HE TIME WHEN THESE TWO APPEALS WERE FILED, HE WAS NOT EVEN THE DIRECTO R OF M/S. DSQ INFORMATION TECHNOLOGIES LTD. IN THAT VIEW OF THE MATTER, HE HAS NO LOCUS STANDI TO FILE ANY APPEAL ON BEHALF OF M/S. DSQ INF ORMATION TECHNOLOGIES LTD. AS THESE APPEALS HAVE BEEN PREFERRED BY SHRI K. M. VENKATESWARAN SHOWING HIMSELF AS THE ASSESSEE WHEREAS THESE APPEA LS ARE IN RELATION TO THE ASSESSMENT OF M/S. DSQ INFORMATION TECHNOLOGIES LTD., IN OUR CONSIDERED OPINION THESE APPEALS CANNOT BE TAKEN ON RECORD AS VALID APPEALS MORE SO FOR THE REASON THAT HE CEASED TO BE THE DIRECTOR OF THE COMPANY IN 2002, WHEREAS THESE APPEALS HAVE BEEN PR EFERRED IN 2008/2010. AS SUCH WE REFUSE TO ADMIT THESE APPEAL S BY DECLARING THEM AS NOT VALIDLY SIGNED AND FILED. THE SAME ARE DI SMISSED. 6. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED ON THIS OF 09 TH MAY, 2012. SD/ - S D/ - ( S. S. GODARA ) ( R. S. SYAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 09.03.2012 ITA NOS. 6818/MUM/2008 & 3628/MUM/2010 SHRI K. M. VENKATESWARAN 5 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, A- BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI