Income Tax Appellate Tribunal - Mumbai
Cps Color Inida P. Ltd, Mumbai vs Assessee on 11 May, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
"C" BENCH, MUMBAI
BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, AND
SHRI R.S. PADVEKAR, JUDICIAL MEMBER
ITA no. 5829/Mum./2010
(Assessment Year : 2006-07)
CPS Color India Pvt. Ltd.
158, Dani Compound
Vidyanagari Marg
CST Road, Kalina
Santacruz (E)
Mumbai 400 098
PAN - AAACC8387P ....................... Appellant
v/s
Asstt. Commissioner of Income Tax
Circle-10(1), Mumbai ................... Respondent
Assessee by : Mr. Milind Kothari
Revenue by : Mr. Manish Kanojia
Date of Hearing - 13.02.2012 Date of Order - 22.02.2012
ORDER
PER J. SUDHAKAR REDDY, A.M.
This appeal preferred by the assessee, is directed against the impugned order dated 11th May 2010, passed by the Commissioner (Appeals)-XXI, Mumbai, for assessment year 2006-07.
2 CPS Color India Pvt. Ltd.
ITA no.5829/M/2010
2. We have heard the learned Counsel, Mr. Milind Kothari, representing the assessee and the learned Departmental Representative, Mr. Manish Kanojia, representing the Revenue.
3. The Commissioner (Appeals) dismissed assessee's appeal on the ground that Form no.35, filed by the assessee, was not signed by the Managing Director and that it was signed by an authorised representative. He held that the requirements in Rule-45(2) in section 140, are mandated statutory requirement.
4. After hearing rival contentions, we find that the Hon'ble Jurisdictional High Court in Prime Securities Ltd. v/s ACIT, [2009] 317 ITR 0027 (Bom.), held as follows:-
"Held, allowing the petition, that the subsequent event could not result in holding that the return as originally filed was not in substance and effect in conformity with or according to the intent or purpose of the Act on the date the return was filed. The test to be applied is whether on the date the original return was filed the return was in conformity with or according to the purpose of the Act. On the date the return was filed the assessee was admittedly a wholly owned subsidiary of G. Even though the return was invalid as originally filed because of a defect in the person signing the return, by virtue of section 139(9) that defect could be cured and was in fact cured. When the defect was cured on October 15, 1992, it would relate back to December 31, 1991, the date of original filing of the return. Once the return was valid and in conformity with the intended purpose of the Act, the petition would have to be allowed."
5. Similar is the findings of the Hon'ble Jurisdictional High Court in Commissioner of Customs (General) v/s Cannon Shipping Co. Pvt. Ltd., [2010) 250 ELT 347 (Bom.).
6. The Hon'ble Jurisdictional High Court in Tilaknagar Industries Ltd. v/s CIT, W.P(L) no.2792 of 2010, etc., vide judgment dated 14th December 2010, at Para-2, held as follows:-
"2. This Court in the case of Prime Securities Limited V/s. Varinder Mehta, Assistant Commissioner of Income Tax, reported in (2009) 317 ITR 27 (Bom.) and Commissioner of Customs v/s Cannon Shipping Company Pvt. Ltd., reported in 250 ITR 347, has held that signing of 3 CPS Color India Pvt. Ltd.
ITA no.5829/M/2010 the appeal memo by a person not authorized is only an irregularity and the same can be rectified. Although, the Commissioner of Income Tax (Appeals) has tried to distinguish the judgment of this Court in the case of Prime Securities Ltd. (supra), we see no merit in such distinction sought to be made. In this view of the matter, the learned counsel for the Revenue fairly states that the impugned orders be quashed and set aside and the appeals be remanded back to the Commissioner of Income Tax (Appeals) for decision on merits in accordance with law."
7. Respectfully following the same, we hold that the defects pointed out by the Commissioner (Appeals) in his order, are only irregularities and the same can be rectified. In view of the above discussion, we restore the matter to the file of Commissioner (Appeals) for adjudication afresh on merits after providing adequate opportunity to the assessee to rectify all the defects / irregularities in the appeal memo.
8. In the result, assessee's appeal is allowed for statistical purposes.
Order pronounced in the open Court on 22.02.2012 Sd/- Sd/-
R.S. PADVEKAR J. SUDHAKAR REDDY
JUDICIAL MEMBER ACCOUNTANT MEMBER
MUMBAI, DATED: 22.02.2012
Copy to:
(1) The Assessee;
(2) The Respondent;
(3) The CIT(A), Mumbai, concerned;
(4) The CIT, Mumbai City concerned;
(5) The DR, "C" Bench, ITAT, Mumbai.
TRUE COPY
BY ORDER
Pradeep J. Chowdhury ASSISTANT REGISTRAR
Sr. Private Secretary ITAT, MUMBAI BENCHES, MUMBAI