Daewon Kang Up Co. Limited, Thiruvallur V. DDIT, CHENNAI

MA 88/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4739 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 19-08-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Keywords: Procedural lapse

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , ! ' ! # . $ , % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.A.NO. 88/MDS/2016 (IN ITA NO. 818/MDS/2015) / ASSESSMENT YEAR : 2010-11 M/S. DAEWON KANG UP CO. LTD., 16-5, NAMDAEMUNNO 5-GA, CHUNG-GU SEOUL, KOREA 100 095. PAN AADCD7280P (APPLICANT) V. THE DEPUTY DIRECTOR OF INCOME- TAX, INTERNATIONAL TAXATION-I, CHENNAI 34. (/ RESPONDENT) APPLICANT BY : SHRI RAGHUNATHAN SAMPATH, ADVOCATE RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT / DATE OF HEARING : 19.08.2016 / DATE OF PRONOUNCEMENT : 21.09.2016 ( / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISC. APPLICATION, THE ASSESSEE SEEKS REC ALL OF THE ORDER OF THE TRIBUNAL DATED 18.03.2016 IN ITA NO.81 8/MDS/2015. 2. THE TRIBUNAL ON EARLIER OCCASION, DISMISSED THE APPEAL OF - - MA 88/201 6 2 THE ASSESSEE BY OBSERVING AS FOLLOWS : 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E MATERIAL ON RECORD. AS PER PROVISIONS OF THE SECTI ON 140(C) OF THE ACT IN CASE OF COMPANY, WHO IS A NON - RESIDENT IN INDIA, THE APPEAL DOCUMENTS REQUIRED TO BE SIGNED AND VERIFIED BY A PERSON WHO HOLDS THE VALID POWER OF ATTORNEY FROM SUCH COMPANY TO DO SO, WHICH SHALL BE ATTACHED TO THE APPEAL OF MEMORANDUM. IN THIS CASE, THE ONE MR. YOO YOUNG JAI HAS SIGNED THE APPEAL OF MEMORANDUM AND ALSO VERIFIED THE SAME. HOWEVER, THE VALID POWER OF ATTORNEY GIVEN TO HIM T O SIGN THE APPEAL DOCUMENTS WAS NOT ATTACHED THERETO. BEING SO, THERE IS A FORCE IN THE ARGUMENT OF THE L D. D.R AND THIS APPEAL IS DEFECTIVE, ACCORDINGLY DISMISSED IN LIMINE. 3. THE LD. AR SUBMITTED THAT THE APPEAL OF THE ASSE SSEE WAS DISMISSED IN LIMINE, SINCE THE ORIGINAL POWER OF AT TORNEY (POA) FOR THE AUTHORIZED SIGNATORY WAS NOT ATTACHED WITH THE APPEAL PAPERS. THE COPY OF THE SAID POA IS ENCLOSED WITH THE PETITION, WHICH IS TO BE CONSIDERED AS RECTIFIED THE APPEAL P APERS. FURTHER, THE LD. AR REQUESTED TO CONDONE THE MISTAK E, RECALL THE EARLIER ORDER OF THE TRIBUNAL AND FIX THE CASE FOR HEARING. HE, ALSO SUBMITTED THAT IN SIMILAR CIRCUMSTANCES, WHERE THERE IS A MISTAKE BY THE ASSESSEE, WHILE PRESENTING THE APPEA L, THE SAME WAS CONDONED BY VARIOUS COURTS IN THE FOLLOWING CAS ES : 1. M/S. ASMITHA MICROFIN LTD. V. ADDL. CIT - MA NO. 91/HYD/2014 (IN ITA NO.137/HYD/14) DATED 13.6.2014 - - MA 88/201 6 3 2. M/S. MAYA TRADELINK LTD. V. DCIT - MA NO.72/KOL/ 12 (IN ITA NO.1510/KOL/2011) DATED 20.7.2012 3. ASIATIC COLOUR CHEM INDIA LTD. V. DCIT MA NO.2 6/AHD/2015 (IN ITA NO. 1933/AHD/2011) DATED 24.6.2015. 3.1 HE ALSO RELIED ON THE ORDER OF THIS TRIBUNAL IN THE CASE OF M/S. INDIAN AIRLINES LTD. V. DCIT ITA NO.72/DEL/2 011DATED 30.9.2011, WHEREIN IT WAS HELD AS UNDER : 12.4. AT THIS STAGE, IT MAY BE APPROPRIATE TO REFE R TO SIMILAR PROVISIONS OF THE CODE OF CIVIL PROCEDURE. IN TERMS OF 0.6 RR 14 AND 15, THERE IS AN OBLIGATION UPON THE PLAINTIFF TO SIGN AND VERIFY TH E PLAINT BY A DULY AUTHORIZED PERSON. IN THE EVENT OF SUCH SIGNING AND VERIFICATION IS DEFECTIVE, EITHER FOR WANT OF AUTHORITY OR ON SUCH SIMILAR GROUNDS, IN THAT EVENT, IT WOULD NOT BE PROPER TO REJECT A PLAI NT UNDER THE PROVISIONS OF O. 7, R.11 OF THE CPC, BUT AN OPPORTUNITY SHOULD BE PROVIDED TO THE PLAINTIFF TO CORRECT THE DEFECT SO THAT SUBSTANTIVE DISPUTE BETWEEN THE PARTIES CAN BE DECIDED. IN THE CASE OF UNITED BANK OF INDIA VS NARESH KUMAR AND ANOTHER 1996 (6) SCC 660, THEIR LORDSHIPS OF THE APEX COURT WHILE REFERRING TO THE LAW OF PRACTICE AND PR OCEDURE CONSIDERING THE OBJECTION M/S INDIAN AIR LINES LIMITED (NOW AIR INDIA LTD) THAT THE PLAINT WAS NOT SIGNED AND VERIFIED IN ACCORDANCE WI TH LAW BY A DULY AUTHORIZED PERSON. THE SUIT HAD BEEN DISMISSED BY T HE COURTS BELOW THEIR LORDSHIPS SITTING IN THE SUPREME COURT HELD : '............... PROCEDURAL DEFECTS WHICH DO NOT GO TO THE ROOT OF THE MATTER SHOULD NOT BE PERMITTED TO DEFEAT A JUST CAUSE. THERE IS SUFFICIENT POWER IN THE COURTS, UNDER THE CODE OF CIVIL PROCEDURE, TO ENSURE THAT INJUSTICE IS NOT DO NE TO ANY PARTY WHO HAS A JUST CASE. AS FAR AS POSSIBLE A SUB STANTIVE - - MA 88/201 6 4 RIGHT SHOULD NOT BE ALLOWED TO BE DEFEATED ON ACCOU NT OF A PROCEDURAL IRREGULARITY WHICH IS CURABLE.' THEY FURTHER OPINED AS UNDER. '.................. IF, FOR ANY REASON WHATSOEVER, THE COURTS BELOW WERE STILL UNABLE TO COME TO THIS CONCLUSION, THEN EITHER OF THE APPELLATE COURTS OUGHT TO HAVE EXERCISED THEIR JURI SDICTION UNDER O. 41, R. 27(1) (B) OF THE CPC AND SHOULD HAV E DIRECTED A PROPER POWER OF ATTORNEY TO BE PRODUCED OR THEY COULD HAVE ORDERED SHRI L.K. ROHATGI OR ANY OTHER C OMPETENT PERSON TO BE EXAMINED AS A WITNESS IN ORDER TO PROV E RATIFICATION OR THE AUTHORITY OF SH. L.K.ROHATGI TO SIGN THE PLAINT. SUCH A POWER SHOULD BE EXERCISED BY A COURT IN ORDER TO ENSURE THAT INJUSTICE IS NOT DONE BY REJECTION O F A GENUINE CLAIM.' 12.5. SUBSTANTIAL COMPLIANCE TO THE RULES OF PROCED URE HAS NORMALLY BEEN ACCEPTED BY THE COURTS AND CONSISTENT VIEW APP EARS TO BE THAT THE DOORS OF ADJUDICATION SHOULD NOT BE SHUT ON AN APPLICANT AT THE VERY THRESHOLD OF THE PROCEEDINGS, UNLESS THERE WAS VIOLATION OF THE SUBSTANTIVE PROVISION WHICH RESULTED IN SETTLEMENT OF RIGHT OF PARTIES. PROCEDURAL LAW IS PANACEA FOR ACHIEVING THE GOAL OR OBJECT OF FAIR M/S INDIAN AIR LINES LIMITED (NOW AIR INDIA LTD) ADJUDI CATION. APPLYING THIS PRINCIPLE, THE SUPREME COURT IN THE CASE OF RAGU THILAK D JOHN VS S RAYAPPAN & OTHERS AIR 2001 SCW 342 WHILE RELYING UPON THE JUDGEMENTS OF THE SUPREME COURT IN L.J. LEACH & CO. LTD. VS JARDINE SKINNER & CO. AIR 1957 SC 357, SMT.GANGA BAI VS VIJAY KUMAR AIR 1974 SC 1126, BKN PILLAI VS P PILLAI AIR 2000 SC 61 4, HELD AS UNDER: '......BUT IT IS EQUALLY TRUE THAT THE COURTS WHILE DECIDING SUCH PRAYERS SHOULD NOT ADOPT HYPERTECHNICAL APPROACH. L IBERAL APPROACH SHOULD BE THE GENERAL RULE PARTICULARLY IN CASES WHERE THE OTHER SIDE CAN BE COMPENSATED WITH THE CO STS. - - MA 88/201 6 5 TECHNICALITIES OF LAW SHOULD NOT BE PERMITTED TO TH E PLEADINGS TO AVOID UNCALLED FOR MULTIPLICITY OF LITIGATION.' FURTHER, THE LD. AR RELIED ON THE JUDGMENT OF THE D ELHI HIGH COURT IN THE CASE OF J.N.SAHNI V. ITAT (123 TAXMAN 569). 4. ON THE OTHER HAND, THE LD. DR STRONGLY RELIED ON THE ORDER OF THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. ADMITTEDLY, AT THE TIME OF DISPOSAL OF THE APPEAL, THE POA WAS GIVEN TO MR. YOO YOUNG JAI TO SIGN THE APPE AL MEMORANDUM, THOUGH THE ASSESSEE IS A NON-RESIDENT OF INDIA, BUT HE HAS NOT FILED THE APPEAL PAPERS. THE TRIBUN AL FOUND THAT THE APPEAL PAPERS FILED BY THE ASSESSEE ARE NOT IN ACCORDANCE WITH THE LAW PRESCRIBED IN SEC.140(C) OF THE ACT. HOWEVER, THE LD. AR FILED THE REQUISITE POA DULY ATTESTED BY THE OFFICER, WHICH IS A NOTARY PUBLIC OFFICER OF SEOUL CENTRAL DISTRIC T PROSECUTORS OFFICE, 13, MUGYORO, JUNG-GU, SEOUL, KOREA. IN OUR OPINION, THE DEFECTS WERE DULY RECTIFIED BY THE ASSESSEE. THERE FORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE ARE INCLINED TO TAKE A LENI ENT VIEW. - - MA 88/201 6 6 ACCORDINGLY, WE RECALL THE EARLIER ORDER OF THE TRI BUNAL AND DIRECT THE REGISTRY TO FIX THE CASE FOR FRESH HEARING ON 1 9.10.2016. 6. IN THE RESULT, THE MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED ON 21 ST OF SEPT., 2016 AT CHENNAI. SD/- SD/- ( . !' #$%& ) ( '() * + , ) ( DUVVURU RL REDDY ) (CHANDRA POOJARI) 6 78 /JUDICIAL MEMBER '# 78/ACCOUNTANT MEMBER '#6 /CHENNAI, A7( /DATED, THE 21 ST SEPT., 2016. MPO* 7#B C'D* EF#D /COPY TO: 1. E*&' /APPELLANT 2. /RESPONDENT 3. G (E*&') /CIT(A) 4. G /CIT 5. D HI& J /DR 6. I% K' /GF.