Asmitha Microfin Ltd., Hyderabad V. Addl.CIT, Range-1, Hyderabad

MA 91/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2086 (ITAT-HYDERABAD)
• Duration Of Justice: 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ESTEHR N HANGAL
• Assessee Lawyers: S RAMA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APPLN. NO.91/HYD/2014 (IN ITA NO.137/HYD/14) : ASSESSMENT YEAR 2009 - 10 M/S. ASMITHA MICROFIN LTD., HYDERABAD ( PAN - AADCA 7399 Q) V/S. ADDL. COMMISSIONER OF INCOME - TAX, RANGE 1, HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : S HRI S.RAMA RAO RESPONDENT BY : MS. ESTEHR N.HANGAL DR DATE OF HEARING 13 .0 6 .2014 DATE OF PRONOUNCEMENT 13.06.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS MISCELLANEOUS APPLICATION, ASSESSEE HAS REQUESTED FOR RECALLING THE EX - PARTE ORDER OF THIS TRIBUNAL DATED 11.2.2014 IN APPEAL, ITA NO.137/HYD/2014 OF THE ASSESSEE, FOR THE ASSESSMENT YEAR 2009 - 10, AND FOR RESTORATION OF THE SAME FOR FRESH HEARING A ND DISPOSAL, FOR THE REASONS STATED IN THE CONCLUDING PARAS OF THIS PETITION WHICH READ AS FOLLOWS - . WHILE FILIN G THE APPEAL BEFORE THE H ONBLE ITAT, FORM NO.36, FORMING P A RT OF THE APPEAL P A PERS, WAS SIGNED BY THE V ICE P RESIDENT ( FIN A N C E ) , AS THE MANAGIN G D IRECTOR WAS NO T AVAILABLE ON THE DATE ON WHI C H FORM NO.36 WAS SIGNED. THE H ONBLE I TAT POINTED OUT THE DEFICIENCY TO THE PETITIONER HEREIN. THE PETITIONER FILED ANOTHER FORM NO.36 SIGNED BY THE MANAGING D IRECTOR, DR.VIDYA SRAVANTHI. HO W E VER, TH E DATE OF SIGNING O F FORM NO.36 WAS MEN T ION E D AS 06.02.2013 THOUGH THE SAME WAS SIGNED AFTER THE HONBLE ITAT POINTED OUT THE SAME TO THE PETITIONER. IT IS A MISTAKE ON THE PART OF THE PETITIONER IN AFFIXING THE DATE AS 06.02.2013 IN S TEAD O F THE DATE ON WHI C H FORM NO.36 WAS ACTUALLY SIGN E D. THE HO N BLE ITAT VIDE ORDER IN I TA NO.137/HY D /2013 DATED 11 - 02 - 2014 DISMISSED THE APPEAL AS DEFECTIVE ON THE GROUND THAT THE MAN A GING D IRECTOR WHO WAS NOT AVAIL A BL E IN INDIA ON 06 - 02 - 2013 COULD NO T HAVE SIGNED THE APPEAL. MA NO. 91 /HYD.2014(IN ITA NO. 13 7 /HYD/201 4 ) M/S. ASMITHA MICROFIN LTD., HYDERABAD 2 THE PETITIONER HUMBLY SUBMI T S THAT THE DATE WAS WRONGLY AFFIXED. THE PETITIONER IS SUBMI T TIN G A FRESH FORM NO.36 ALONGWITH THE GROUNDS OF APP E AL DULY SIGNED BY THE M ANAGING DIRE C TOR. THE PETITION ER REQUEST S THE H ONBL E ITAT TO KINDLY R E STORE THE APPEAL BY INVOKING THE P R OV I SION S U/S. 254 ( 2) OF THE I.T. ACT AND PASS APPROPRI A TE ORDERS IN THE MATTER. 2. REITERATING THE ABOVE AVERMENTS MADE IN THE PRESENT APPLICATION, LEARNED COUNSEL FOR THE ASSESSEE PRAYED FOR RECALL OF THE ORDER DATED 11.2.2014 AND FOR RESTORATION OF THE APPEAL FOR FRESH HEARING AND DISPOSAL. 3. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND OPPOSED THE ABOVE REQUEST OF THE LEARNE D COUNSEL FOR THE ASSESSEE. 4. WE HEARD BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FACT THAT THERE IS DEFECT THE FORM OF APPEAL FILED BY THE ASSESSEE, INASMUCH AS IT HAS BEEN SIGNED BY THE VOICE PRESIDENT(FINANCE) AND N OT BY THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY, WHO ALONE IS COMPETENT TO SIGN THE SAME. REASON FOR THIS WAS STATED TO BE THAT THE MANAGING DIRECTOR WAS OUT OF COUNTRY AT THE RELEVANT POINT OF TIME. EVEN THOUGH THE SAID DEFECT HAS BEEN RECTIFIED, DATE ON THE FORM 36 WAS ALLOWED TO REMAIN THE SAME AS IN THE EARLIER FORM NO.36. SINCE ON THE DATE ON WHICH EARLIER FORM NO.36 WAS SIGNED, ASSESSEES MANAGING DIRECTOR WAS STATED TO HAVE BEEN OUT OF COUNTRY, OBSERVING THAT ON THAT VERY DATE THE MANAGING DI RECTOR COULD NOT HAVE SIGNED THE REVISED FORM NO.36, THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE AS DEFECTIVE. EVEN THOUGH THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL, CONSIDERING THE FACT THAT THE DISMISSAL OF THE APPE AL WAS FOR A PROCEDURAL AND TECHNICAL DEFECT IN THE FORM OF APPEAL/REVISED FORM OF APPEAL, VIZ. FORM NO.36, FILED BY THE ASSESSEE , IN MA NO. 91 /HYD.2014(IN ITA NO. 13 7 /HYD/201 4 ) M/S. ASMITHA MICROFIN LTD., HYDERABAD 3 THE INTERESTS OF JUSTICE AND TAKING A LENIENT VIEW OF THE MATTER, WE RECALL THE EARLIER ORDER OF THIS TRIBUNAL DATED 11.2. 2014, DULY TAKING ON RECORD THE REVISED FORM OF APPEAL, VIZ. FORM NO.36 FILED BY THE ASSESSEE WITH THIS PETITION. REGISTRY IS DIRECTED TO PROCESS THE SAID REVISED FORM OF APPEAL AND POST THE APPEAL FOR FRESH HEARING AND DISPOSAL ON 21.10.2014, DULY ISSUING THE NECESSARY NOTICE IN THAT BEHALF. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE COURT ON THE CONCLUSION OF HEARING ON THE MISCELLANEOUS APPLICATION ON 13 .0 6 .201 4 SD/ - SD/ - ( B.RAMAKOTAIAH ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 13 TH JUNE, 2014 COPY FORWARDED TO: 1. M/S. ASMITHA MICROFIN LTD., DOOR NO.1 - 2 - 58, PLOT NO.1 - 3, N - BLOCK, KAKATIYA NAGAR, HYDERABAD 500 078 2 . ADDL. COMMISSIONER OF INCOME - TAX RANGE 2 , HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) I I HYDERABAD 4. COMMISSIONER OF INCOME - TAX I, HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S