Loading judgment…
Facts
The appeals were filed by the assessee against orders of the CIT(A) which dismissed the appeals due to delay. The Revenue's primary contention is that the appeals are defective as the Form 36 was not signed by the assessee, and the purported Constituted Attorney's authorization was not supported by a valid Power of Attorney on record.
Held
The Tribunal held that the appeals were not maintainable in law due to fundamental defects in their filing, specifically the absence of the assessee's signature and a validly authorized representative with a Power of Attorney on record. Despite repeated opportunities, these defects were not cured.
Key Issues
Whether the appeals filed in Form 36 are maintainable when not signed by the assessee and the authorization of the representative is not substantiated by a valid Power of Attorney.
Sections Cited
147, 148, 142(1), 144, 68, 69, 253, 140, 47, 45, 139, 115WD
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI “I” BENCH : MUMBAI
Before: SHRI VIKRAM SINGH YADAV & SHRI SANDEEP SINGH KARHAIL
Assessee by : NONE Revenue by : Shri Satya Pal Kumar, CIT-DR a/w. Shri Krishna Kumar, Sr.DR Date of Hearing : 21-07-2025 Date of Pronouncement : 30-07-2025 O R D E R PER BENCH : These are set of appeals filed by the assessee against the respective orders of the Ld. Commissioner of Income Tax (Appeals)-57, Mumbai [„Ld.CIT(A)‟], dated 27-10-2023, pertaining to Assessment Years (AYs.)
2 Zakir Abdulkarim Naik (batch appeals) 2010-11 & 2011-12 and consolidated order passed for the AYs. 2012-13 to 2015-16, dt. 31-10-2023.
None appeared on behalf of the assessee nor has any adjournment application been filed. Considering the fact that all these appeals were filed way back in December, 2023, and all these matters have been adjourned from time to time, it was deemed appropriate to proceed with these matters based on the material available on record and after hearing the Ld. DR.
During the course of hearing, the Ld.DR taken us through the facts of the case and submitted that the assessee has filed original return of income for all the assessment years involved. However, on the basis of report of JCIT (I&CI), Unit-1(1), Mumbai and after analysis of bank statements obtained from Union Bank of India, Development Credit Bank etc., the assessee‟s case for all these assessment years were reopened u/s. 147 of the Act. Thereafter, the assessment orders were passed by the AO u/s. 144 r.w.s. 147 of the Act as the assessee failed to respond and comply with the requirement of the statutory notices issued u/s 147 and thereafter, notices u/s. 142(1) of the Act.
It was submitted that for AY. 2010-11, the notice u/s. 148 was issued on 15-03-2017, which was served by affixture by Ward Inspector on 17- 03-2017 and in response to the said notice, there was no response from the assessee and no return in response to notice u/s 148 was filed by the assessee. Thereafter, the AO issued notice u/s. 142(1) of the Act which again remain un-complied with and the assessment proceedings were completed by the AO u/s. 144 r.w.s. 147 of the Act vide order dt. 28-12- 2017, determining the total income in the hands of the assessee at 3 Zakir Abdulkarim Naik (batch appeals) Rs. 1,43,64,560/-wherein the AO brought to tax unexplained deposits in the bank accounts u/s 68 and unexplained investments u/s 69 of the Act. It was submitted that similar fact exists for other assessment years wherein the notices u/s 148 were served on the assessee through affixture, there was no return filed in response to the notices/no compliance on part of the assessee and assessment proceedings were completed u/s. 144 r.w.s. 147 of the Act wherein the AO brought to tax unexplained deposits, unexplained foreign remittances and unexplained investments and the assessed income was determined at Rs. 2,49,99,730/- for AY. 2011-12 vide order dt. 27-12-2018; Rs. 2,86,98,480/- for AY 2012-13 vide order dt. 30-12-2019; Rs. 35,44,35,300/- for AY. 2013-14 vide order dt. 30-12- 2019; Rs. 10,43,02,760/- for AY. 2014-15 vide order dt. 30-12-2019, and Rs. 8,11,73,550/- for AY. 2015-16 vide order dt. 30-12-2019.
It was submitted that against the aforesaid assessment orders so passed by the AO, the assessee filed respective appeals before the Ld.CIT(A) and for AYs. 2010-11 and 2011-12, the appeals of the assessee were dismissed by the Ld.CIT(A) on account of delay in filing the appeal, vide separate orders dt. 27-12-2023 and for AY. 2012-13 to 2015-16, the appeals of the assessee were dismissed by the Ld.CIT(A) vide consolidated order dt. 31-12-2023 and against the aforesaid orders so passed by the Ld.CIT(A), the assessee is in appeal before this Tribunal.
In the aforesaid background, it was submitted by the Ld. DR that the appeals so filed by the assessee in specified Form No. 36 on 24-12-2023 in all these cases are defective and are clearly not in order as the appeal in specified Form No. 36 is not signed at all by the assessee. It was further submitted that the verification part of Form No. 36 is signed by Mr. Naseer Khan Riyasat Khan in the capacity of Constituted Attorney of the assessee.
4 Zakir Abdulkarim Naik (batch appeals) However, the relevant document being Power of Attorney appointing Mr. Naseer Khan Riyasat Khan in the capacity of Constituted Attorney of the assessee has not been enclosed while filing these appeals nor has been placed on record subsequently by the assessee. It was further submitted that even the details of place of verification is not available on Form No.
It was accordingly submitted that there is clearly a defect in filing these appeals in Form No. 36 as so specified in the Statute as the same has not been signed nor verified in the prescribed manner as so provided in Statute. It was submitted that unless and until the defect so pointed out is not cured by the assessee, no cognizance can be taken of these appeals as the same are not maintainable in law and all these appeals deserve to be dismissed.
It was further submitted that neither the assessee nor his authorized representative is prosecuting these appeals and not a single appearance has been recorded before the Bench even after lapse of nearly two years since the appeals were filed. In this regard, it was submitted that in the past, the notices were served by the Registry of the Tribunal which have remain either unserved or no response has been received from the assessee and given that, to allow further opportunity to the assessee, the Bench on the earlier occasion has directed his office to serve the notice through the AO, which has since been served by affixture at the last known address of the assessee and report of the AO has been placed on record. It was accordingly submitted that even on this account, the appeals of the assessee deserve to be dismissed for want of prosecution by the assessee.
We have heard the Ld.DR and perused the material available on record. All these appeals are against the orders passed by the Ld.CIT(A)
5 Zakir Abdulkarim Naik (batch appeals) u/s. 250 of the Act vide order dt. 27-10-2023 for AYs. 2010-11 and 2011- 12 and by way of consolidated order dt. 31-10-2023 for AYs. 2012-13 to 2015-16. All these appeals were e-filed with the Registry on 26-12-2023. On perusal of the Form 36 filed for A.Y 2010-11, which is the specified form for filing the appeal before the appellate Tribunal u/s 253 of the Act, it is noted that the appeal have been stated to be filed by the assessee, Mr. Zakir Abdulkarim Naik, Mumbai, however, the form of appeal, the grounds of appeal and the form of verification appended thereto have not been signed by the assessee, Zakir Abdulkarim Naik. At the same time, Mr. Naseer Khan Riyasat Khan has digitally signed the verification part of the appeal memorandum on 24-12-2023 claiming to be Constituted Attorney of the assessee. Identical appeal Forms - 36 have been submitted for the other assessment years under consideration wherein the form of appeal, the grounds of appeal and the form of verification appended thereto have not been signed by the assessee, Zakir Abdulkarim Naik and only the verification part of Form 36 has been digitally signed by Mr. Naseer Khan Riyasat Khan claiming to be Constituted attorney of the assessee.
The provisions dealing with form of appeal to be filed by an individual before the Tribunal and the person, who is authorized to sign such appeals are contained in Section 253, Section 140 of the Act, Rule 47(1) and 45(2) of the Income Tax Rules, 1962 („the Rules‟).
As per sub-section (1) of section 253 of the Act, any assessee aggrieved by any of the orders which inter alia include the order passed by the Ld.CIT(A), u/s.250 of the Act, may appeal to the appellate Tribunal against such order. Sub-section (3) of section 253 of the Act provides that appeal under sub-section (1) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee
6 Zakir Abdulkarim Naik (batch appeals) or to the Principal Commissioner or Commissioner, as the case may be. Sub-section (6) of section 253 of the Act provides that an appeal to the appellate Tribunal shall be in prescribed Form and shall be verified in the prescribed manner and shall be accompanied by a fee as so specified.
Rule 47 of the Income Tax Rules, 1962, deals with form of appeal and memorandum and cross-objection to be filed before the appellate Tribunal. Sub-Rule (1) to Rule 47 provides that an appeal as per sub-section (1) or sub-section (2) of Section 253 to the appellate Tribunal shall be made in Form No. 36 and where appeal is made by the assessee, the form of appeal, the grounds of appeal
and the form of verification appended thereto shall be signed by the person specified in sub-section (3) of Rule
45. Rule 45 talks about the form of appeal to be filed before the Commissioner Appeals and sub-Rule (3) of Rule 45 provides that the form of appeal shall be verified by the person who is authorized to verify the return of income u/s. 140 as applicable to the assessee.
12. If we look at the provisions of section 140 of the Act, it interalia provides that the return of income u/s. 115WD or section 139 shall be verified in case of an individual by the individual himself (sub-clause (i)), or where he is absent from India, by the individual himself or by some person duly authorised by him in this behalf (sub-clause (ii)), or where he is mentally incapacitated from attending to his affairs, by his guardian or any other person competent to act on his behalf (sub-clause (iii)), or where, for any other reason, it is not possible for the individual to verify the return, by any person duly authorised by him in this behalf (sub-clause (iv)). It has been further provided that in a case referred to in sub-clause (ii) or sub-clause (iv), the person signing the return holds a valid power of 7 Zakir Abdulkarim Naik (batch appeals) attorney from the individual to do so, which shall be attached to the return of income.
It is, therefore, evident from the aforesaid provisions that an appeal u/s. 253 to the appellate Tribunal is required to be filed in form prescribed i.e., Form No. 36 and the prescribed form of appeal, the grounds of appeal
and the form of verification appended thereto shall be signed and verified by the person, who is authorized to sign the return of income u/s. 140 of the Act. The statue by usage of the words “shall be signed and verified” doesn‟t leave any ambiguity and such a requirement has to be mandatorily complied with. As per section 140 of the Act, the return of income u/s. 139 has to be signed and verified by the individual himself or by some person duly authorized in his behalf or where for any other reason, it is not possible for the individual to verify the return, by any person who is duly authorized by him in this behalf. And, in the latter two cases, where the person other than the assessee has been authorized to sign the return of income, such other persons is required to hold a valid Power of Attorney to verify the return of income and the said Power of Attorney has to be attached with the return of income. Such right of appeal is given to the assessee in order to ensure that the assessee is not visited upon by any adverse action at the appellate stage without his knowledge. In order to ensure that, it has been provided in the statue that either the assessee shall sign and verify the appeal documents under his signatures or where he is authorizing any other person, the other person is not just authorized by him but the factum of authorization is also brought on record at the time of filing of appeal so that the appellate authorities can take cognizance thereof. In the instant case, as we have noted supra, the prescribed form of appeal, the grounds of appeal and the form of verification has not been signed by the assessee. Further, only the form of 8. Zakir Abdulkarim Naik (batch appeals) verification has been digitally signed by one Mr. Naseer Khan Riyasat Khan, who has been stated to be a Constitute Attorney. However, there is nothing on record in terms of the Power of Attorney issued by the assessee, authorizing Mr. Naseer Khan Riyasat Khan to sign and verify the appeal on behalf of the assessee. No copy of power of attorney has been e-filed along with the appeal nor the same has been placed on record subsequently. There is nothing on record to verify whether the assessee has issued any power of attorney to Mr. Naseer Khan Riyasat Khan to sign and verify the appeals so filed as his Constituted attorney as so claimed. We, therefore, find that in absence of a valid Power of Attorney, appointing Mr. Naseer Khan Riyasat Khan, he is not an authorized person to sign and verify the present appeals filed on behalf of the assessee before us.
In this regard, we find that the Registry at the time of registering these appeals so filed by the assessee on 24-12-2023 has highlighted that these appeals are defective as not signed by the assessee. Thereafter, the matter was listed before the Bench and the notices were issued to the assessee from time to time. As evident from the records, it is noted that notice was initially issued to the assessee on 08-04-2024 listing the matter on 04-06- 2024, there was however, no compliance on the part of the assessee and the matter was adjourned and another notice was issued listing the matter on 06-08-2024. There was no compliance on part of the assessee on the said date and another notice was issued listing the matter for 08-10-2024. Thereafter, fresh notices were issued listing the matter on 04-12-2024, 07- 02-2025, 24-03-2025 and finally, to 21-07-2025 as listed before this Bench. All these notices have been issued through RPAD as well as electronically on the email id naseerriyasatkhan52@gmail.com provided in Form 36 so filed with the Registry. There is continued non-compliance to the notices so issued by the assessee or by his constituted Attorney as so 9 Zakir Abdulkarim Naik (batch appeals) claimed at the time of filing these appeals in terms of responding to the notices so issued and removing the defect and in terms of prosecuting the present appeal. We, therefore, find that the sufficient opportunity has been granted to the assessee to remove the defects in filing these appeals before this Tribunal. However, in spite of the notices been issued from time to time at the last known address so provided by the assessee in the assessee‟s Form No. 36 as well as to the notices sent to the e-mail provided in Form No. 36 and the fact that the notices were also affixed through affixture by the Revenue at the last known address as evident from the report of the AO submitted by the Ld.DR and placed on record, we find that the defects have not been removed by the assessee nor any efforts seems to be taken to remove the defects so pointed out.
The defects in terms of prescribed form of appeal, the grounds of appeal and the form of verification not been signed by the assessee or where the assessee is not able to sign and has appointed a Constituted Attorney as so claimed, absence of a valid power of attorney authorizing such person and bringing such power of attorney on record is fundamental to the assessee exercising his right of appeal where so aggrieved, however, in absence of valid signature or valid authorization, appeal so filed is clearly non-est in the eyes of law and are not maintainable.
In the instant case, the repeated opportunities have been provided to the assessee to remove the defects, however, for reasons best known to the assessee or his Constituted Attorney as so claimed, there is no compliance on the part of the assessee and the assessee has maintained complete silence.
10 Zakir Abdulkarim Naik (batch appeals) 17. We are, therefore, of the considered opinion that unless and until the defects so pointed out are removed by the assessee, the present appeals are not maintainable in law and cannot be taken up for adjudication. As the appeals are not maintainable in law in view of the failure on the part of the assessee to remove the defects, we are constrained to dismiss all these appeals at the very threshold and the same are hereby dismissed.
In the result, all these appeals are dismissed.