Income Tax Appellate Tribunal - Delhi
Fortune Polymer Industries Pvt. Ltd., ... vs Assessee on 31 October, 2002
IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH 'B' : NEW DELHI)
BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER
and
SHRI B.C. MEENA, ACCOUNTANT MEMBER
ITA No.3510/Del./2010
(ASSESSMENT YEAR : 1997-98)
M/s. Fortune Polymer Industries Pvt. Ltd., vs. JCIT, Spl. Range 14,
G - 4, Community Centre, New Delhi.
Naraina Vihar,
New Delhi.
(PAN : AAACF0355Q)
(APPELLANT) (RESPONDENT)
ASSESSEE BY : Shri Ankur Goel, Advocate
REVENUE by : Shri A.K. Sinha, Senior DR
ORDER
PER B.C. MEENA, ACCOUNTANT MEMBER :
This is an appeal filed by the assessee emanates from the order of the CIT (Appeals)-XIV, New Delhi dated 31.10.2002 for the assessment year 1997-98.
2. This company was incorporated on 13.07.1988. The promoter of the company was Shri R.K. Shrivastava. The company was engaged in the business of manufacturing of PVC Water Storage Tanks. Its manufacturing facility was located at Plot No.B-6, Site - B, Surajpur, Greater Noida, UP. The company also got finance from Uttar Pradesh Financial Corporation and 2 ITA No.3510/Del./2010 Pradeshiya Industrial and Investment Corporation of Uttar Pradesh. The Board for Industrial and Financial Reconstruction (BIFR) vide its order dated 18.03.1997 declared the appellant company as a sick. The BIFR vide its order dated 23.02.2000 declared the winding up of the company. The order of BIFR was confirmed by the Appellate Authority for Industrial and Financial Reconstruction (AAIFR) vide its order dated 21.07.2000. On 03.03.2001, the Official Liquidator appointed by the Hon'ble Delhi High Court and took possession and control of the books and assets of the company. The appeal has been filed by the Mrs. Rekha Shrivastava on 19.07.2010 by claiming as legal heir of promoter-cum-director of the company, Shri R.K. Shrivastava. The appeal is not signed by the person authorized in terms of Rule 45 of the Income-tax Rules, 1962. On the date of filing appeal on 19.07.2010, Smt. Rekha Shrivastava was not a director of company. Company was under control of Official Liquidator on the date of filing the appeal. It was claimed that the Hon'ble Delhi High Court vide its order dated 28.02.2011 has set aside the winding up proceedings and in pursuant to that Rekha Shrivastava has been appointed Director of the company. It is claimed by Ld. AR that a revised memo signed by Rekha Shrivastava has been filed. The assessment in the case was made u/s 143(3) on 10.02.2000. The CIT (Appeals) decided the appeal of the assessee on 3 ITA No.3510/Del./2010 31.10.2002 by dismissing the same. The appeal has been filed on 19.07.2010, signed by Rekha Shrivastava.
3. At the time of hearing of this appeal on 06.03.2012, Shri Ankur Goel, Advocate was specifically asked to show the competence of Smt. Rekha Shrivastava to file the present appeal when the assessee company was already under liquidation and the Hon'ble Delhi High Court has appointed the Official Liquidator. The learned counsel was also asked to explain the maintainability of the appeal, signed, verified and filed by Rekha Shrivastava who was neither director nor a managing director of the company at the time of filing the appeal. The company was in liquidation within the jurisdiction of Hon'ble Delhi High Court. The appeal has been filed by the wife of the erstwhile managing director and not by the Official Liquidator. The relevant sections / rules on the issue of liquidator and competency of filing the appeal are as under :-
(i) Section 178 of Income-tax Act recognizes the Official Liquidator as the concerned person in case the company is in liquidation.
(ii) Section 2(7) defines the word "assessee" which read as under :-
"assessee" means a person by whom [any tax] or any other sum of money is payable under this Act, and includes-- 4 ITA No.3510/Del./2010
(a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income [or assessment of fringe benefits] or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person ;
(b) every person who is deemed to be an assessee under any provision of this Act ;
(c) every person who is deemed to be an assessee in default under any provision of this Act ;
(iii) Section 253(1) of the Income-tax Act provides that the assessee aggrieved may appeal to the ITAT against such order.
(iv) Rule 47(1) of the Income-tax Rules, 1962 provides that Form No.36 shall be signed by the person specified in Rule 45(2).
(v) Rule 45(2) provides that Form of appeal prescribed, the grounds of appeal and the form of verification appended thereto relating to the assessee shall be signed and verified by the person who is authorized to sign the return of income under section 140 of Income-tax Act, 1961, as applicable to the assessee.
(vi) The Second Proviso to section 140(c) provides that where the company is being wound up, whether under the orders of a court 5 ITA No.3510/Del./2010 or otherwise, or where any person has been appointed as the receiver of any asset of the company, the return shall be signed and verified by the liquidator referred to in sub-section (1) of section 178.
(vii) Section 457 of the Companies Act, 1956 provides the power of the liquidator which also includes the power to defend legal proceedings, civil or criminal in the name of and on behalf of the company.
In view of this legal position and after hearing both the sides, in our considered view, in such case as of the assessee, appeal could validly be filed by the Official Liquidator only. The Official Liquidator had already been appointed and functioning. The relevant provisions of the Income-tax Act, 1961 and also the relevant Income-tax Rules, 1962, read with the provisions of Companies Act, 1956 in the case of a company where the Official Liquidator has been appointed, no other person is competent to file the appeal. No other person can verify and file a valid appeal. Any appeal not verified and filed by the competent person deserves to be dismissed as not maintainable. Thus, in case, where the company is under liquidation, the appeal could only be filed by the Official Liquidator. The subsequent order of the Hon'ble Delhi High Court on 28.02.2011 for setting aside the winding 6 ITA No.3510/Del./2010 up petition and appointing Rekha Shrivastava as Director of the company will not validate the filing of the appeal under the signatures of Rekha Shrivastava on 19.07.2010.
4. Considering the entirety of the facts and circumstances, material on record and in the light of relevant provisions of law on the issue of maintainability of the appeal, when not signed by the competent person, we hold that such appeal is not maintainable, hence dismissed.
5. In the result, the appeal of the assessee is dismissed.
Order pronounced in open court on this 9th day of March, 2012.
Sd/- sd/-
(I.P. BANSAL) (B.C. MEENA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated the 9th day of March, 2012/TS
Copy forwarded to:
1.Appellant
2.Respondent
3.CIT
4.CIT(A)-XIV, New Delhi.
5.CIT(ITAT), New Delhi AR, ITAT
NEW DELHI.