M/s Skytel Communication Ltd.,, New Delhi v. ACIT,, Solan

ITA 112/CHANDI/2010 | 1997-1998
Pronouncement Date: 20-11-2014 | Result: Allowed

Appeal Details

RSA Number 11221514 RSA 2010
Assessee PAN AAACE3488R
Bench Chandigarh
Appeal Number ITA 112/CHANDI/2010
Duration Of Justice 4 year(s) 9 month(s) 23 day(s)
Appellant M/s Skytel Communication Ltd.,, New Delhi
Respondent ACIT,, Solan
Appeal Type Income Tax Appeal
Pronouncement Date 20-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 20-11-2014
Date Of Final Hearing 17-11-2014
Next Hearing Date 17-11-2014
Assessment Year 1997-1998
Appeal Filed On 27-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI T.R.SOOD ACCOUNTANT MEMBER ITA NO. 112/CHD/2010 ASSESSMENT YEAR: 1997-98 M/S SKYTEL COMMUNICATION LTD. VS THE ACIT SCO 119 INDRA PARKASH BUILDING CIRCLE 21 BARAKHAMBHA ROAD SOLAN (HP). NEW DELHI. PAN: AAACE3488R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MUKHI & M S. PRERNA RESPONDENT BY : SHRI S.K.MITTAL DATE OF HEARING : 17.11.2014 DATE OF PRONOUNCEMENT : 20.11.2014 O R D E R PER BHAVNESH SAINI JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) SHIMLA DATED 19.11.2009 FOR ASSESSMENT YEAR 1997-98. 2. THE ONLY EFFECTIVE GROUND OF APPEAL IN APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(APPEALS) SHOULD CONDON E THE DELAY IN FILING THE APPEAL. EARLIER THE APPEAL OF THE ASSES SEE WAS DISMISSED IN DEFAULT VIDE ORDER DATED 30.03.2011 WH ICH WAS RECALLED IN MISCELLANEOUS APPLICATION NO. 60/2011 V IDE ORDER DATED 12.06.2013. THUS APPEAL WAS FIXED FOR HEARI NG AFRESH. 3. IN THIS CASE THE ASSESSMENT ORDER UNDER SECTION 144 READ WITH SECTION 254 OF THE ACT WAS PASSED ON 16.11.200 7. THE LD. 2 CIT(APPEALS) NOTED THAT APPEAL IS TIME BARRED BY 8 MONTHS. THE DEFECT MEMO WAS ALSO ISSUED AS TO WHY THE APPEAL SH OULD NOT BE ADMITTED AS IT WAS FILED BEYOND TIME WITHOUT DEPOS ITING THE REQUISITE FEES. THE ASSESSEE REQUESTED TO CONSIDER THE STATEMENT OF FACTS AND GROUNDS OF APPEAL SENT ON 21.12.2007 A S AN APPEAL. THE LD. CIT(APPEALS) HOWEVER HELD THE APPEAL TO BE TIME BARRED BY EIGHT MONTHS WITHOUT SUFFICIENT CAUSE AND ACCORD INGLY APPEAL WAS DISMISSED. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT RETURN OF INCOME WAS FILED ON 30.11.1997 AND ORIGINAL ASSESSM ENT WAS MADE ON 30.12.1999. THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(APPEALS) SHIMLA WHO VIDE ORDER DATED 28.03.200 1 DELETED THE ADDITIONS. THE DEPARTMENT PREFERRED APPEAL BEF ORE ITAT CHANDIGARH BENCH WHO HAS DISPOSED OFF THE DEPARTMEN TAL APPEAL VIDE ORDER DATED 12.09.2006 AND ISSUED CERTAIN DIRE CTIONS UPON WHICH THE MATTER WAS TAKEN UP BY THE ASSESSING OFFI CER FOR HEARING AND ASSESSING OFFICER PASSED THE IMPUGNED O RDER ON 16.11.2007. THE LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE IMPUGNED ORDER OF THE ASSESSING OFFICER WAS RECEIVE D ON 14.12.2007 AND APPEAL WAS TO BE FILED WITHIN 30 DAY S BY 13.01.2008. HE HAS SUBMITTED THAT EARLIER COUNSEL FILED THE APPEAL BY COURIER WITH LETTER DATED 26.12.2007 COP Y OF THE SAME IS FILED AT PAGES 1 & 2 OF THE PAPER BOOK. THE SAM E WAS SENT BY COURIER ON 02.01.2008. ON CHECKING THE STATUS OF APPEAL IN THE COMMISSIONERS OFFICE THE ASSESSEE SUE-MOTTO FILED APPEAL IN PROPER FORMAT COPY OF WHICH IS FILED AT PAGES 18-2 3 OF THE PAPER BOOK IN JULY 2008. 3 5. THE LD. CIT(APPEALS) ISSUED A DEFECT MEMO DATED 29.07.2008 SEEKING EXPLANATION OF THE ASSESSEE (PB- 24) IN WHICH IT WAS STATED THAT NO APPEAL IS FILED AS WAS CLAIME D EARLIER BY THE ASSESSEE ON 26.12.2007 AND THAT FORM NO. 35 LAT ER ON FILED REVEALED THAT PROPER FEES OF THE APPEAL HAS NOT BEE N PAID. IT WAS THEREFORE FOUND THAT APPEAL OF THE ASSESSEE W AS TIME BARRED. HE HAS SUBMITTED THAT ASSESSEE FILED A REP LY BEFORE LD. CIT(APPEALS) ON DATED 12.08.2008 EXPLAINING THEREIN THAT EARLIER APPEAL WAS FILED BEFORE LD. CIT(APPEALS) THROUGH CO URIER ON 02.01.2008 COPY OF THE RECEIPT IS FILED AT PAGE 17 OF THE PAPER BOOK AND DEFICIENCY IN PAYING APPELLATE FEES WAS AL SO REMOVED BY PAYING THE FEES FOR THE PURPOSE OF FILING APPEAL BEFORE LD. CIT(APPEALS). IT WAS THEREFORE STATED THAT THERE IS NO DELAY IN FILING THE APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ORIGINALLY THE APPEAL WAS NOT FILED IN FORM NO. 35 AS REQUIRED BY THE RULES THEREFORE THE DEFECTS WERE CURED IN FILING FORM NO . 35 AS WELL AS PAYING THE APPELLATE FEES. THEREFORE THE DEFECTS IN THE APPEAL WHICH WERE CURED SHOULD RELATE TO THE ORIGINAL DATE AND APPEAL IS VALID IN LAW AND RELIED UPON DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF PRIME SECURITIES LTD. VS VARINDER ME HTA ACIT 28 DTR 119 IN WHICH IT WAS HELD AS UNDER : CONCLUSION : RETURN SIGNED BY SECRETARY OF THE COM PANY WILL BE DEFECTIVE BUT SUCH DEFECT CAN BE CURED BY VIRTUE OF S. 139(9) R/W S. 292B; ONCE THE DEFECT IS REMOVED IT W ILL RELATE TO ORIGINAL DATE OF FILING THE RETURN AND ONCE THE RET URN IS VALID AND IN CONFORMITY WITH THE INTENDED PURPOSE OF THE AC T IT CANNOT BE IGNORED. 4 7. ON THE OTHER HAND LD. DR SUBMITTED THAT NO PROP ER APPEAL WAS FILED BEFORE LD. CIT(APPEALS) THEREFORE APPEAL WAS RIGHTLY DISMISSED BEING TIME BARRED. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND MATERIA L AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSES SEE CONTENDED THAT THE EARLIER COUNSEL FILED THE APPEAL BEFORE LD . CIT(APPEALS) CHALLENGING THE IMPUGNED ORDER DATED 16.11.2007 CO PIES OF THE APPEAL PAPERS ARE FILED IN PAPER BOOK AT PAGES 1 TO 18 OF THE PAPER BOOK. THE SAID APPEAL WAS SENT BY POST TO LD . CIT(APPEALS) ON 02.01.2008. RECEIPT OF THE COURIER IS FILED AT PAGE 17 OF THE PAPER BOOK. IT WOULD THEREFORE RE VEAL THAT THE IMPUGNED ASSESSMENT ORDER WAS CHALLENGED BEFORE LD. CIT(APPEALS) BY FILING THE APPEAL HOWEVER THE APPE AL PAPERS WERE NOT PREPARED IN FORM NO. 35 AS PRESCRIBED BY I T RULES. FURTHER NO APPELLATE FEE WAS PAID ON THE SAID APPE AL. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT DUE TO IGNO RANCE BY THE EARLIER COUNSEL NO PROPER APPEAL PAPERS WERE FILED IN FORM NO. 35 WHICH WERE LATER ON SUBMITTED AT THE TIME OF FIL ING THE APPEAL BEFORE LD. CIT(APPEALS). IT IS THUS CLEAR THAT THE LD. CIT(APPEALS) ISSUED A DEFECT NOTICE TO THE ASSESSEE TO RECTIFY T HE APPEAL PAPERS WHICH WERE RECTIFIED BY THE ASSESSEE THEREF ORE IT APPEARS THAT WHATEVER DEFECTS WERE RAISED WERE REM OVED BY THE ASSESSEE LATER ON. THEREFORE SUCH REMOVAL OF DEFE CTS SHOULD RELATE BACK TO THE ORIGINAL DEFECTIVE APPEAL FILED BY THE ASSESSEE. THE DEFECTIVE APPEAL IS FILED WITHIN THE PERIOD OF LIMITATION THEREFORE THE LD. CIT(APPEALS) INSTEAD OF TAKING A VERY TECHNICAL VIEW ON THE MATTER SHOULD HAVE CONDONED THE DELAY IN FILING THE APPEAL IN FORM NO. 35. 5 9. CONSIDERING TOTALITY OF THE FACTS AND CIRCUMSTAN CES WHEN THE APPEAL WAS NOT FILED IN PRESCRIBED FORM WHICH W AS IN FACT FILED BY THE EARLIER COUNSEL WITHOUT KNOWING PROCED URE OF FILING THE APPEAL BEFORE LD. CIT(APPEALS) IN OUR VIEW ASS ESSEE SHOULD NOT SUFFER ON ACCOUNT OF MISTAKE COMMITTED BY THE L D. COUNSEL FOR THE ASSESSEE. THE ASSESSEE HAS SUFFICIENT CAUS E TO EXPLAIN THE DELAY. WE THEREFORE SET ASIDE THE ORDER OF T HE LD. CIT(APPEALS) AND CONDONE DELAY IF ANY IN FILING TH E APPEAL BEFORE LD. CIT(APPEALS) AND RESTORE THE APPEAL TO T HE FILE OF LD. CIT(APPEALS) WITH DIRECTION TO RE-DECIDE THE APPEAL OF THE ASSESSEE ON MERITS STRICTLY IN ACCORDANCE WITH LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH NOVEMBER 2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH NOVEMBER 2014. POONAM COPY TO: THE APPELLANT THE RESPONDENT THE CIT(A) THE CIT DR ASSISTANT REGISTRAR ITAT CHANDIGARH