UB OSTAN (INDIA) P. LTD, PUNE V. ITO 1(3)(4), MUMBAI

ITA 7039/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1698 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 02-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBANGOTRA LD
• Section: 45(2); 143(3); 139

Judgement Text

ITA NO.7039/MUM/2016 UB OSTAN (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.7039/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) UB OSTAN (INDIA) PRIVATE LIMITED SAHYADRI SADAN, TILAK ROAD PUNE-411 030 / VS. INCOME TAX OFFICER 1(3)(4) AAYKAR BHAVAN MUMBAI-400 020 ! ./ ./PAN/GIR NO. AABCU-2815-K ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : NONE RE VENUE BY : RAJEEV GUBANGOTRA, LD. DR / DATE OF HEARING : 02/08/2018 / DATE OF PRONOUNCEMENT : 05/09/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 CONTEST THE ORDER OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-3 [CIT(A)],MUMBAI, APPEAL NO.CIT(A)-3/ITO-1(3)(4)/IT-41/2015-16 DATED 29/09/2016 QUA CONFIRMATION OF CERTAIN ADDITIONS. THE ASSESSMENT FOR IMPUGNED AY HAS BEEN FRAMED U/S 143(3) ON 30/03/201 5 WHEREIN THE INCOME OF THE ASSESSEE HAS BEEN DETERMINED AT RS.44 4.08 LACS AS ITA NO.7039/MUM/2016 UB OSTAN (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2012-13 2 AGAINST NIL RETURN E-FILED BY THE ASSESSEE ON 29/09/2012. THE SAME, UPON CONFIRMATION BY LD. CIT(A), IS BEING AGITATED BEFORE US. 2. NONE HAS APPEARED FOR ASSESSEE AND NO VALID ADJO URNMENT APPLICATION IS ON RECORD. LEFT WITH NO OPTION, WE P ROCEED TO DISPOSE-OFF THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECO RD AFTER HEARING LD. DEPARTMENTAL REPRESENTATIVE [DR], SHRI RAJEEV GUBANGOTRA, WHO RAISED A PRELIMINARY ISSUE AS TO ADMISSIBILITY / VALIDITY OF THE INSTANT APPEAL. 3. AT THE OUTSET, UPON PERUSAL OF ORDER SHEET ENTRY DATED 10/05/2018, WE FIND THAT THE BENCH HAD NOTICED THAT THE APPEAL HAS BEEN FILED / SIGNED / VERIFIED BY THE EX-DIRECTOR OF THE COMPANY WHICH WAS CONFRONTED TO AUHTORIZED REPRESENTATIVE [AR] WHO SUBMITTED THA T THE COMPANY WAS NOT DOING ANY BUSINESS AND NOBODY WAS THERE TO TAKE CARE OF THE COMPANY. ACCORDINGLY, LD. AR WAS DIRECTED TO SUBSTA NTIATE THE VALIDITY OF THE APPEAL AND ALSO FILE THE PRESENT STATUS OF THE COMPANY, ITS COMPLIANCES UNDER THE COMPANIES ACT, DETAILS OF DIR ECTORS ETC. THE APPEAL WAS FIXED FOR HEARING ON 28/06/2018 WHEREIN THE LD. AR SOUGHT ADJOURNMENT AND ACCORDINGLY THE APPEAL WAS FIXED FO R HEARING ON 12/07/2018. HOWEVER THE BENCH DID NOT FUNCTION ON T HAT DATE AND THE APPEAL WAS FIXED FOR HEARING ON 02/08/2018. ON THIS DATE OF HEARING, AS ALREADY NOTED, NOBODY IS PRESENT FOR ASSESSEE AND N O VALID ADJOURNMENT APPLICATION IS ON RECORD. HAVING NO OTHER OPTION, W E PROCEED TO DISPOSE- OFF THE SAME. 4. IT IS NOTED THAT THE APPEAL FORM NO. 36, VERIFIC ATION THEREOF, STATEMENT OF FACTS AS PER ANNEXURE-1 AND GROUNDS OF APPEAL AS PER ANNEXURE-2 ARE ALL SIGNED BY J.K.SARDANA EX-DIRECTOR. THE REPLY DATED 14/12/2016 AGAINST DEFECT NOTICE ISSUED BY THE REGI STRY IS ALSO SIGNED BY ITA NO.7039/MUM/2016 UB OSTAN (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2012-13 3 THE SAME PERSON. IT IS ALSO NOTED THAT THE STATED A UHTORIZED REPRESENTATIVE FOR ASSESSEE [AR], SHAH, SHAH & SHAH, CHARTERED ACCOUNTANTS HAVE NOT FILED ANY LETTER OF AUTHORITY FROM THE ASS ESSEE WHICH ENTITLES THEM TO MAKE ANY SUBMISSIONS BEFORE THE BENCH AND PLEADING MADE BY THEM IN ANY MANNER, COULD NOT BE T AKEN COGNIZANCE OF. IN THIS BACKGROUND, WE, AT THE THRESHOLD, EXAMI NE THE MAINTAINABILITY / VALIDITY OF THE INSTANT APPEAL. 5. THE PROVISIONS DEALING WITH FORM OF APPEAL TO BE FILED BY A COMPANY BEFORE THE TRIBUNAL AND THE PERSON WHO IS A UTHORIZED TO SIGN SUCH APPEAL ARE CONTAINED IN RULE 47(1) AND 45(2) O F INCOME TAX RULES, 1962 READ WITH SECTION 140 OF THE ACT, WHICH, TO TH E EXTENT RELEVANT FOR OUR PURPOSE, ARE REPRODUCED HEREUNDER:- RULE 47 OF INCOME TAX RULES, 1962:- '47. FORM OF APPEAL AND MEMORANDUM OF CROSS-OBJECTI ONS TO APPELLATE TRIBUNAL. (1) AN APPEAL UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 253 TO THE APPELLATE TRIBUNAL SHALL BE MADE IN FORM NO. 36 , AND WHERE T HE APPEAL IS MADE BY THE ASSESSEE, THE FORM OF APPEAL, THE GROUNDS OF APPEAL AND THE FORM OF VERIFICATION APPENDED THERETO SHALL BE SIGNED BY THE PERSON SPEC IFIED IN SUB-RULE (2) OF RULE 45. ****** RULE 45 OF INCOME TAX RULES, 1962:- (45).1 ****** (2) THE FORM OF APPEAL PRESCRIBED BY SUB-RULE (1), THE GROUNDS OF APPEAL AND THE FORM OF VERIFICATION APPENDED THERETO RELATING TO AN ASS ESSEE 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 .' SECTION 140 OF THE INCOME TAX ACT, 1961 : 140. RETURN BY WHOM TO BE SIGNED. THE RETURN UNDER SECTION 139 SHALL BE SIGNED AND VERIFIED (A) IN THE CASE OF AN INDIVIDUAL, ****** (B) IN THE CASE OF A HINDU UNDIVIDED FAMILY, ****** ITA NO.7039/MUM/2016 UB OSTAN (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2012-13 4 (C) IN THE CASE OF A COMPANY, BY THE MANAGING DIREC TOR THEREOF, OR WHERE FOR ANY UNAVOIDABLE REASON SUCH MANAGING DIRECTOR IS NOT AB LE TO SIGN AND VERIFY THE RETURN, OR WHERE THERE IS NO MANAGING DIRECTOR, BY ANY DIRECTO R THEREOF : PROVIDED THAT WHERE THE COMPANY IS NOT RESIDENT IN INDIA, THE RETURN MAY BE SIGNED AND VERIFIED BY A PERSON WHO HOLDS A VALID POWER OF ATT ORNEY FROM SUCH COMPANY TO DO SO, WHICH SHALL BE ATTACHED TO THE RETURN : PROVIDED FURTHER THAT, (A) WHERE THE COMPANY IS BEING WOUND UP, WHETHER UNDER THE ORDERS OF A COURT OR OTHERWISE, OR WHERE ANY PERSON HAS BEEN APPOINTE D AS THE RECEIVER OF ANY ASS ETS OF THE COMPANY, THE RETURN SHALL BE SIGNED AND VERIFIED BY THE LIQUIDATOR REFERRED TO IN SUB-SECTION (1) OF SECTIO N 178; (B) WHERE THE MANAGEMENT OF THE COMPANY HAS BEEN TAKEN OVER BY THE CENTRAL GOVERNMENT OR ANY STATE GOVERNMENT UNDER ANY LAW, T HE RETURN OF THE COMPANY SHALL BE SIGNED AND VERIFIED BY THE PRINCIP AL OFFICER THEREOF; ****** 6. UPON PERUSAL OF ABOVE PROVISIONS, IT IS CLEARLY EVIDENT THAT AN APPEAL U/S 253 TO THE TRIBUNAL IS REQUIRED TO BE FI LED IN PRESCRIBED FORM NO. 36 AND THE SAME IS TO BE SIGNED BY THE PERSONS SPECIFIED IN SUB-RULE (2) OF RULE 45. AS PER SUB-RULE (2) OF RULE 45, THE PRESCRIBED FORM OF APPEAL, THE GROUNDS OF APPEAL AND THE FORM OF VERIF ICATION APPENDED THERETO, ARE REQUIRED TO BE SIGNED AND VERIFIED BY THE PERSON WHO IS AUTHORIZED TO SIGN THE RETURN OF INCOME UNDER SECTI ON 140 OF THE INCOME TAX ACT,1961. AS PER SECTION 140 OF THE INCOME TAX ACT, 1961, THE RETURN OF INCOME UNDER SECTION 139 HAS TO BE SIGNED AND VERIFIED, IN THE CASE OF A COMPANY, RESIDENT IN INDIA, BY THE MANAGI NG DIRECTOR THEREOF, OR WHERE FOR ANY INEVITABLE REASON SUCH MANAGING DI RECTOR IS NOT ABLE TO SIGN AND VERIFY THE RETURN OR WHERE THERE IS NO MAN AGING DIRECTOR, BY ANY DIRECTOR THEREOF. A COMBINED READING OF THESE RELEV ANT PROVISIONS MAKES IT ABUNDANTLY CLEAR THAT THE PERSON WHO IS THE MANA GING DIRECTOR OF THE ASSESSEE COMPANY, OR ITS DIRECTOR IN CERTAIN CIRCUM STANCES, ON THE DATE OF THE FILING OF THE RETURN ONLY CAN SIGN AND VERIF Y THE RETURN IN THE CASE OF ITA NO.7039/MUM/2016 UB OSTAN (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2012-13 5 A COMPANY, IT THEREFORE, FOLLOWS THAT A PERSON WHO IS MANAGING DIRECTOR OR DIRECTOR, AS THE CASE MAY BE, OF THE COMPANY, ON THE DATE OF FILING OF THE APPEAL BEFORE THE TRIBUNAL IS ONLY AUTHORIZED T O SIGN AND VERIFY THE APPEAL FILED BEFORE THE TRIBUNAL IN THE CASE OF A C OMPANY. IN THE PRESENT CASE, NOTHING ON RECORD SUGGEST THAT THE PERSON FIL ING THE INSTANT APPEAL WAS SO QUALIFIED. THEREFORE, THE INSTANT APPEAL, NO T SIGNED AND VERIFIED AS PER STATUTORY MANDATE, IS NOT MAINTAINABLE IN LA W AND HENCE, LIABLE TO BE DISMISSED AT THE VERY THRESHOLD. WE ORDER ACCORD INGLY. THIS BEING THE CASE, DELVING INTO THE MERITS OF THE ADDITIONS, BEC OMES MERELY ACADEMIC IN NATURE AND WE SEE NO FRUITFUL REASON TO DO THE S AME. 7. RESULTANTLY, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH SEPTEMBER, 2018 SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 05.09.2018 SR.PS:-THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - , - , / DR, ITAT, MUMBAI 6. , ./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI