M.MUKESH KUMAR vs. THE INCOME TAX OFFICER

TCA.No.2 of 2021 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.1.2021 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MS.JUSTICE R.N.MANJULA Tax Case Appeal No.2 of 2021 Shri.M.Mukesh Kumar ...Appellant Vs The Income Tax Officer, Non Corporate Ward 1(3), Coimbatore ...Respondent APPEAL under Section 260A of the Income Tax Act, 1971 against the order dated 02.4.2019 passed by the Income Tax Appellate Tribunal, Chennai 'D' Bench in I.T.A.No.2955/Chny/2018 for the assessment year 2008-09. For Appellant : Mr.A.S.Sriraman For Respondent : Mr.T.R.Senthilkumar, SSC assisted

by Ms.K.G.Usharani, JSC Judgment was delivered by

T.S.SIVAGNANAM

This appeal, filed by the assessee under Section 260A of the Income Tax Act, 1961 (for short, the Act), is directed against the order 1/5 https://www.mhc.tn.gov.in/judis/ TCA.No.2 of 2021 dated 02.4.2019 made in I.T.A.No.2955/Chny/2018 on the file of the Income Tax Appellate Tribunal, Chennai 'D' Bench ('the Tribunal' for brevity) for the assessment year 2008-09. 2. The appellant/assessee has filed this appeal by raising the following substantial questions of law: “1. Whether the Appellate Tribunal is justified in dismissing the appeal ex parte despite the sufficient reasons were shown by the appellant as per the Proviso below Rule 24 of the Income Tax Appellate Tribunal Rules, 1963? 2. Whether the Appellate Tribunal is correct in dismissing the appeal as defective even though there is no such defect as pointed out by Registry and explained at the time of hearing as printing error in incorporating the appellant's name in the cause title of Form No.36 filed before them ? And 3. Whether the Appellate Tribunal is correct in dismissing the appeal as defective going solely by the cause title of Form No.36 while ignoring the verification portion of the said Form No.36 thereby proving perversity in the findings recorded in relation thereto?” 2/5 https://www.mhc.tn.gov.in/judis/ TCA.No.2 of 2021 3. We have heard Mr.A.S.Sriraman, learned counsel appearing for the appellant/assessee and Mr.T.R.Senthilkumar, learned Senior Standing Counsel assisted by Ms.K.G.Usharani, learned counsel appearing for the respondent – Revenue. 4. It may not be necessary for us to go into the factual matrix, as the appeal filed by the assessee before the Tribunal was dismissed on the ground that the appeal was defective. From the defect memo, which was notified to the assessee, we find that the initial of the assessee was shown as 'I' instead of 'M' and owing to such a reason, the appeal was dismissed as defective by the impugned order. In fact, hearing of the appeal took place on 27.3.2019 and none appeared for the assessee. It is relevant to note that in the impugned order passed by the Tribunal, the initial of the assessee has been correctly shown as 'M'. Thus, the Tribunal itself rectified the mistake. 5. In any event, the mistake, being an insignificant or inadvertent error, ought to have been permitted to be rectified instead of dismissing the appeal on the ground that it was defective despite Rule 12 of the Income Tax (Appellate Tribunal) Rules, 1963 provides for such a procedure to be adhered to. Further, we are informed that the defect memo issued by the Registry of the Tribunal along with hearing notice and the papers were not returned earlier to the 3/5 https://www.mhc.tn.gov.in/judis/ TCA.No.2 of 2021 assessee or to their authorized representative. 6. It is high time that the Tribunal evolves a procedure, by which, the defective papers are returned to the assessee or the Revenue and reasonable time can be granted for rectifying the defects. In fact, such a procedure is being followed in this Court, as a result of which, many of the minor defects were rectified and cases are numbered. Thus, considering the fact that the appeal was dismissed on a technical ground, which, in our opinion, appears to be on a hyper technical ground, we are inclined to interfere with the impugned order. 7. Accordingly, the above tax case appeal filed by the assessee is allowed, the impugned order is set aside and the appeal is restored to the file of the Tribunal to be heard and decided on merits and in accordance with law. We direct that the name of the assessee shall be mentioned as 'M.Mukesh Kumar' in all the appeal papers and the assessee/his authorized representative shall be permitted by the Registry of the Tribunal to carry out the corrections and if necessary, clean copies of the appeal papers shall be made available. The substantial questions of law raised are left open. No costs. RS 04.1.2021 4/5 https://www.mhc.tn.gov.in/judis/ TCA.No.2 of 2021 T.S.SIVAGNANAM,J AND R.N.MANJULA,J RS To 1.The Income Tax Appellate Tribunal, Chennai 'D' Bench. 2.The Income Tax Officer, Non Corporate Ward 1(3), Coimbatore TCA.No.2 of 2021 04.1.2021 5/5 https://www.mhc.tn.gov.in/judis/