M/s. Foremost Marble Pvt. Ltd., UDAIPUR V. ITO, CHITTORGARH

MA 66/JODH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2529 (ITAT-JODHPUR)
• Duration Of Justice: 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 25-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER MA NO. 66 /JODH/2014 (ARISING OUT OF ITA NO. 62 1 /J U /20 04 ) ( ASSESSMENT Y EAR : 200 1 - 0 2) M /S. FORE M OST MARBLES PVT. LTD., CHITTORGARH. VS. ITO, WARD - 1, CHITTORGARH. PAN NO. AAACF 4674 N ( APPLICANT ) (RESPONDENT) APPLICANT BY : SHRI AMIT KOTHARI . DEPARTMENT BY : SHRI JAI SINGH - D.R. DAT E O F HEARING : 26 - 0 9 - 2014 DATE OF PRONOUNCEMENT : 01 - 1 0 - 201 4 ORDER PER N.K. SAINI , A .M . THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE HAS BEEN FILED AGAINST ORDER DATED 31 - 0 7 - 2008 IN ITA NO. 621/JU/2004 FOR THE A.Y. 200 1 - 0 2 . 2 IN THIS MISCELLANEOUS APPLICATION THE ASSESSEE STATED AS UNDER: - 1. THE APPEAL IN THE CASE OF ASSESSEE WAS DECIDED IN ITA NO. 621/JU/2004 VIDE ORDER DATED 31/07/2008 . THE HONBLE TRIBUNAL HOWEVER DECIDED THE SAID APPEAL ON THE GROUND THAT THE SAME WAS DE FECTIVE, AS THE SAME WAS NOT SIGNED BY THE MANAGING DIRECTOR OF THE COMPANY. 2. IT IS RESPECTFULLY SUBMITTED THAT NOTICE INTIMATING DEFECT WAS RECEIVED BY THE ASSESSEE STATING THAT THERE IS NO MANAGING DIRECTOR OF THE SAID 2 COMPANY, AND AS SUCH THE APPEAL MEMO SIGNED BY DIRECTOR WAS DEFECTIVE. THE APPELLANT HAD SENT A REPLY TO THE COUNSEL ATTENDING THE HEARING STATING THAT THE SAME MAY BE SUBMITTED TO THE HONBLE TRIBUNAL. IN THE SAID APPLICATION IT WAS STATED THAT THERE IS NO POST OF MANAGING DIRECTOR OF T HE COMPANY, AND AS SUCH THE APPEAL FILED BY THE ASSESSEE IS NOT DEFECTIVE AND A PRAYER WAS MADE FOR ENTERTAINING THE APPEAL. HOWEVER, UNFORTUNATELY THE APPLICATION WAS MISPLACED AND SAME WAS NOT PRESENTED TO THE HONBLE TRIBUNAL ON THE DATE OF HEARING. 3. IN THESE CIRCUMSTANCES, IT IS REQUESTED THAT THE SAID APPEAL SUBMITTED BY THE APPELLANT WAS MAINTAINABLE, AND MAY KINDLY NOT BE TREATED AS DEFECTIVE. IT IS REQUESTED THAT THE APPEAL SUBMITTED BY THE ASSESSEE MAY KINDLY BE RESTORED AND BE DECIDED ON MERITS . 4. IT IS THEREFORE VERY HUMBLY PRAYED THAT ORDER PASSED IN ITA NO. 621/JU/2004 VIDE ORDER DATED 31/07/2008 MAY KINDLY BE RECALLED. 3. IN SUPPORT OF THE ABOVE CONTENTION, THE ASSESSEE ALSO FILED AN AFFIDAVIT OF ITS DIRECTOR ST A TING THEREIN AS UNDER: - 1. THAT THE CONTENTS OF MY MISCELLANEOUS APPLICATION SUBMITTED FOR RESTORATION OF ITA NO. 621/JU/2004 FOR A.Y. 2001 - 02, ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND I CONFIRM THE CONTENTS OF MY APPLICATION. 2. I ALSO CONFIRM THAT THERE IS NO MANAGING DIRECTOR OF THE COMPANY, AND THEREFORE THE APPEAL MEMO WAS SIGNED BY THE DIRECTOR OF THE COMPANY. 4 . DURING THE COURSE OF HEARING, L EARNED COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID MISC. APPLICATION AND THE AFFIDAV IT AND STATED THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED ONLY ON TECHNICAL GROUND I.E. APPEAL MEMO HAD BEEN VERIFIED BY THE DIRECTOR AND NOT BY THE MANAGING DIRECTOR . IT WAS STATED THAT THE ASSESSEE COMPANY H AS ONLY THE DIRECTOR AND NOT THE 3 MANAGING DI RECTOR AND THAT THE MEMO OF APPEAL WAS SIGNED BY THE DIRECTOR. THEREFORE, THE ORDER DATED 31/07/2008 DESERVES TO BE RECALLED. 5. IN HIS RIVAL SUBMISSIONS, L EARNED D.R. STATED THAT THE ORDER DATED 31/07/2008 MAY NOT BE RECALLED, BUT COULD NOT CONTROVERT T HE AFORESAID CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT THE APPEAL OF THE ASSESSEE IN I.T.A.NO. 621/JU/2008 WAS DISMISSED IN LIMINE ONLY ON TH IS BASIS THAT THE APPEAL MEMO WAS NOT SIGNED BY THE MANAGING DIRECTOR BUT WAS SIGNED BY THE DIRECTOR . NOW THE DIRECTOR OF THE ASSESSEE COMPANY HAD STATED THROUGH THE AFFIDAVIT THAT THERE IS NO MANAGING DIRECTOR OF THE COMPANY AND THEREFORE, APPEAL MEMO WA S SIGNED BY THE DIRECTOR OF THE COMPANY. WE, THEREFORE, RECALL THE ORDER DATED 31/07/2008 AND REGISTRY IS DIRECTED TO FIX THE APPEAL IN I.T.A.NO. 6 21/JU/2004 FOR THE A.Y. 2001 - 02 IN DUE COURSE . 7 . IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSE E IS ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01 - 1 0 - 201 4 . ) S D/ - SD/ - (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01 ST OCTOBER , 201 4 4 V R/ - COPY TO: - 1.THE APPELLANT 2 . THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE SR. PRIVATE SECRETARY, ITAT, JODHPUR