YUSUF HUSAIN, MUMBAI V. ITO 11(1)-4, MUMBAI

ITA 5490/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9260 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 11-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 26-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: C N VAZE
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G , MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 1133/MUM/2012 ASSESSMENT YEAR : 2006-07 ITA NO. 5490/MUM/2011 ASSESSMENT YEAR : 2006-07 SHRI YUSUF HUSAIN C.O., CVK & ASSOCIATES A-103/104, VARDHLAXMI GOKHALE ROAD MULUND (E) MUMBAI-400 081. PAN NO.AAWPH 4652 F VS. INCOME TAX OFFICER 11(1)-4 AAYAKR BHAVAN NEW MARINE LINES MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.N. VAZE RESPONDENT BY : SHRI MOHIT JAIN DATE OF HEARING : 11.12.2012 DATE OF PRONOUNCEMENT : 11.12.2012 O R D E R PER RAJENDRA SINGH, AM: THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST DIFFERE NT ORDERS DATED 11.10.10 AND 22.12.2011 OF CIT(A) FOR T HE ASSESSMENT YEAR 2006-07. BOTH THE ORDERS OF CIT(A) RELATE TO TH E SAME ORDER OF AO DATED 31.12.2008. BOTH THE APPEALS OF THE ASSESSEE AR E AGAINST THE ORDER OF CIT(A) DISMISSING THE APPEAL FILED BY THE ASSESSEE. ITA NO.1133/12 & 5490/11 A.Y. 06-07 2 2. THE FACTS IN BRIEF ARE THAT THE AO FOR THE ASSESSMENT YEAR 2006- 07 HAD PASSED AN EXPARTE ASSESSMENT ORDER UNDER SECTION 14 4 ON 31.12.2008. THE ASSESSEE FILED APPEAL AGAINST THE SAID O RDER BEFORE CIT(A) ON 10.7.2009. THE MEMORANDUM OF APPEAL HAD B EEN SIGNED BY C.A. SHRI S.U. RADHAKRISHNANI, AS AUTHORIZED REPRESEN TATIVE. CIT(A) NOTED THAT THE APPEAL HAD NOT BEEN SIGNED BY THE ASSESSE E. THOUGH AS PER RULE 45(2), THE APPEAL COULD ALSO BE FILED BY AUT HORIZED SIGNATORY WHO HOLDS VALID POWER OF ATTORNEY, IN THIS CASE, THE A SSESSEE NEITHER SUBMITTED ANY VALID POWER OF ATTORNEY NOR THERE WAS A NY EXPLANATION AS TO WHY THE APPEAL WAS NOT SIGNED BY THE ASSESSEE. CIT(A ) THEREFORE VIDE THE ORDER DATED 11.10.10 DISMISSED THE APPEAL OF THE ASSESSEE AS INVALID. 2.1 THE ASSESSEE THEREAFTER FILED FRESH APPEAL ON 7.3.20 11 ALONG WITH APPLICATION FOR CONDONATION OF DELAY. THE ASSESSEE I N THE SAID APPLICATION SUBMITTED THAT HE WAS A LAY PERSON WHO WAS D EPENDENT UPON THE C.A. SHRI S.U. RADHAKRISHNANI, THROUGH WHO M THE ASSESSEE WAS FILING THE RETURN OF INCOME. IT WAS A LAPSE ON THE PART OF THE C.A. THAT HE FILED FIRST APPEAL WITHOUT GETTING IT PROPER LY SIGNED BY HIM. HE HAD SIGNED THE APPEAL HIMSELF WITHOUT INFORMING THE A SSESSEE. THE ASSESSEE CAME TO KNOW ABOUT HIS LAPSE ONLY AFTER RECEIPT O F THE ORDER OF CIT(A) AND THEREAFTER FRESH APPEAL WAS FILED ALONG WITH CONDONATION OF APPLICATION. CIT(A) HOWEVER IN THE ORDER DATED 22 .12.11 HELD THAT ITA NO.1133/12 & 5490/11 A.Y. 06-07 3 THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDE R HAD ALREADY BEEN ADJUDICATED BY CIT(A) AND DISMISSED. THERE WAS NO PROVISION FOR FILING OF AN APPEAL WHEN THE FIRST APPE AL HAD BEEN DISMISSED. THE APPEAL WAS ALSO FILED BEYOND THE TIME LIM IT. CIT(A) THEREFORE DISMISSED THE APPEAL IN LIMINE. AGGRIEVED, B Y THE SAID DECISION, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE ASSESSEE HAD FILED T HE FIRST APPEAL AGAINST THE ASSESSMENT ORDER ON 10.7.2009 WHICH WAS NOT SI GNED BY THE ASSESSEE AND THIS APPEAL HAD BEEN TREATED BY CIT(A) AS INVALID. THEREFORE ONCE THE APPEAL WAS TREATED AS INVALID, THE SAME BECAME NON-EST. THE ASSESSEE HAD THE RIGHT TO FILE ANOTHER APPE AL WHICH OF COURSE HAS TO BE CONSIDERED AS DELAYED APPEAL AND, IN CASE , DELAY IS CONDONED, THE APPEAL HAS TO BE DECIDED ON MERIT. IN TH IS CASE THE ASSESSEE HAD FILED CONDONATION APPLICATION BEFORE CIT(A) GIVING REASONS FOR DELAY IN FILING OF APPEAL. CIT(A) HAS NOT PASSED ANY ORDER ON THE CONDONATION APPLICATION. HE HAS DISMISSED THE APPEA L ON THE GROUND THAT APPEAL HAD ALREADY BEEN DECIDED BY CIT(A ) AND THERE WAS NO PROVISION FOR SECOND APPEAL AGAINST THE SAME ORDER. THE VIEW TAKEN BY CIT(A) DOES NOT REPRESENT THE CORRECT VIEW AND THER EFORE, HAS TO BE REJECTED. ONCE THE APPEAL FILED BY THE ASSESSEE IS FOUND T O BE LEGALLY INVALID AND DISMISSED AS SUCH, THE ASSESSEE CAN FILE ANOTHER APPEAL ITA NO.1133/12 & 5490/11 A.Y. 06-07 4 WHICH HAS TO BE CONSIDERED ALONG WITH CONDONATION APPLIC ATION AND, IF ADMITTED AFTER DUE CONSIDERATION OF CONDONATION APPLICA TION, IT HAS TO BE DECIDED ON MERIT. THE ORDER OF CIT(A), THEREFORE, CAN NOT BE SUSTAINED AND IS SET ASIDE AND MATTER RESTORED TO CIT(A) FOR DECIDING THE SAME AFRESH AFTER NECESSARY EXAMINATION IN THE LIGHT OF OBSERVATIONS MADE ABOVE AND AFTER ALLOWING OPPORTUNIT Y OF HEARING TO THE ASSESSEE. AS REGARDS FIRST APPEAL WHICH WAS NOT SIGNED BY THE ASSESSEE, DISPOSAL BY CIT(A) IS CONSIDERED AS JUST AND FAIR A ND THE SAME IS UPHELD. 4. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO.5490/M /11 STANDS DISMISSED WHEREAS THE APPEAL IN ITA NO.1133/M/12 IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.12.2012. SD/- SD/- (VIVEK VARMA) JUDICIAL MEMBER (RAJENDRA SINGH) ACCOUNTANT MEMBER MUMBAI, DATED: 11.12.2012. JV. ITA NO.1133/12 & 5490/11 A.Y. 06-07 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.