RAMAN & WELL P. LTD, MUMBAI V. ADDL CIT 1(3), MUMBAI

ITA 9023/MUM/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71719 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 13-11-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 24-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , ./I.T.A. NO.9023/MUM/2010 ( / ASSESSMENT YEAR : 2005-06) M/S RAMAN & WEIL PVT.LTD., 15, CHATEAU MARINE, B.ROAD, CHURCHGATE, MUMBAI-400020 / VS. ADDL. COMMISSIONER OF INCOME TAX, CIRCLE-1(3), MUMBAI. ( ( / APPELLANT) .. ( ) ( / RESPONDENT) ./ ./PAN/GIR NO. : AAACR5065M ( /: ASSESSEE BY SHRI ANTONY XAVIER (REPRESENTATIVE OF ASSESSEE) ) ( , / REVENUE BY SHRI SANJEEV JAIN , / / DATE OF HEARING : 13.11.2013 , / /DATE OF PRONOUNCEMENT : 13.11.2013 / O R D E R PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2005-06 AGAINST THE ORDER OF LD. CIT(A) DATED 8.9.2010 ON FOLLOWING G ROUNDS : 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN N OT APPRECIATING THAT THE APPEAL MEMO IN FORM 35 WAS SIGNED BY THE WHOLE TIM E DIRECTOR, AS THE MANAGING DIRECTOR WAS TRAVELLING AND THIS VERIFICA TION IS VALID U/S 140 OF ACT AS, IT WAS MADE BY THE WHOLE TIME DIRECTOR INSTEAD OF THE MANAGING DIRECTOR, ON ACCOUNT OF UNAVOIDABLE CIRCUMSTANCE. 2. WITHOUT PREJUDICE TO ABOVE GROUND OF APPEAL, THE LD. CIT(A) OUGHT TO HAVE HELD THAT SUBSEQUENT SUBMISSION OF FORM 35 V ERIFIED BY THE MANAGING DIRECTION CURED THE DEFECT IN THE ORIGINAL MEMORAND UM OF APPEAL AND IT WAS RECTIFIED. 3. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN TREA TING APPEAL FILED BEFORE HIM AS INVALID AS IT WAS SIGNED BY THE WHOLE TIME D IRECTOR INSTEAD OF THE MANAGING DIRECTOR. 2. WE OBSERVE THAT LD. CIT(A) HAS ONLY DECIDED THE ISSUE AS TO WHETHER THE ASSESSEE HAS VALIDLY FILED THE APPEAL OR NOT. HE HAS NOT DECIDED THE GROUNDS OF APPEAL TAKEN BY ASSESSEE BEFORE HIM. LD. CIT(A) HAS STAT ED THAT FORM NO.35, STATEMENT OF I.T.A. NO.9023/MUM/2010 2 FACTS AND GROUNDS OF APPEAL HAVE BEEN SIGNED AND VERIFIED BY DIRECTOR OF THE COMPANY AND NOT BY MANAGING DIRECTOR OF THE COMPA NY AS PER RULE 45 (2) OF THE INCOME TAX RULES, 1962 (RULES) R.W.S.140(C) OF THE INCOME TAX ACT, 1961(ACT). WE OBSERVE THAT THE ASSESSEE HAS STATED THAT AT THE TI ME OF FILING OF THE APPEAL, THE MANAGING DIRECTOR WAS NOT AVAILABLE AND ACCORDINGL Y FORM NO.35 WAS SIGNED BY WHOLE TIME DIRECTOR OF THE ASSESSEE COMPANY AND LATER ON FORM NO.35 WAS REVISED AND IT WAS VERIFIED BY MANAGING DIRECTOR TO CURE THE DEFEC T IN THE ORIGINAL MEMORANDUM OF APPEAL I.E. FORM NO.35. WE OBSERVE THAT THE LD. C IT(A) DID NOT TAKE INTO ACCOUNT REVISED FORM NO.35 AND DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT FORM NO.35 BEING THE APPEAL MEMORANDUM IS AN INVALID DO CUMENT, DEVOID OF ANY SANCTITY IN THE EYES OF LAW AND CANNOT BE PROCEEDED WITH. 3. WE OBSERVE THAT THE LD. CIT(A) HAS NOT CONSIDERE D REVISED FORM NO.35 DULY SIGNED BY MANAGING DIRECTOR AND THE SAID ACTION OF THE LD. CIT(A) IS NOT JUSTIFIED AS HE SHOULD HAVE CONSIDERED REVISED FORM NO.35 WHICH WA S IN ACCORDANCE WITH RULE 45 OF THE RULES R.W.S.140(C) OF THE ACT. LD. DR HAS NOT DISPUTED THE ABOVE FACTS. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGN ED ORDER OF LD. CIT(A) AND DIRECT HIM TO DECIDE THE GROUNDS OF APPEAL ON MERITS AFTER G IVING DUE OPPORTUNITY OF HEARING TO THE PARTIES BY A REASONED ORDER. HENCE, GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE ALLOWED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED BY DIRECTING THE LD. CIT(A) TO DECIDE THE GROUNDS OF APPEAL TAKEN BY ASSESSEE ON M ERITS AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE PARTIES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 13TH NOVEMBER, 2013 , 2 3 13TH NOVEMBER, 2013 , SD SD ( / SANJAY ARORA) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: I.T.A. NO.9023/MUM/2010 3 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. ( / THE APPELLANT 2. ) ( / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- CONCERNED 4. 7 / CIT CONCERNED 5. 8 ): , / : , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) / : , /ITAT, MUMBAI