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Income Tax Appellate Tribunal, “A’’ BENCH: BANGALORE
Before: SHRI N.V. VASUDEVAN & SHRI B.R. BASKARAN
PER B.R. BASKARAN, ACCOUNTANT MEMBER:
The assessee has filed this appeal challenging the order dated 21.11.2019 passed by ld. CIT(A)-10, Bengaluru and it relates to assessment year 2004-05. Assessee is aggrieved by the decision of Ld. CIT(A) in dismissing the appeal filed by it before him as not maintainable.
The Ld. Counsel appearing for the assessee submitted that the A.O. passed penalty order levying penalty u/s 271E of the Income-
M/s. United Spirits Limited, Bangalore
Page 2 of 4 tax Act,1961 ['the Act' for short] on 28.6.2007. In the penalty order, the name of the assessee is shown as M/s. Shaw Wallace Distilleries Ltd. The A.O. levied a penalty of Rs.4,14,70,000/- u/s 271E of the Act for alleged contravention of provisions of section 269T of the Act. The ld. A.R. submitted that M/s. Shaw Wallace Distilleries Ltd. was merged with M/s. McDowell & Company Ltd., pursuant to the scheme of amalgamation sanctioned by Hon’ble High Court of Bombay & Hon’ble High Court of Karnataka. The appointed date for merger was determined as 1st April, 2005. Subsequently, M/s. McDowell & Company Ltd. changed its name to M/s. United Spirits Ltd. Accordingly, the present name of the assessee company is M/s. United Spirits Ltd.
The assessee filed appeal before Ld. CIT(A) challenging the penalty levied u/s 271E of the Act. In form No.35, the name of the assessee was mentioned as under: “Shaw Wallace Distilleries Ltd. (since amalgamated with Mcdowell & Company Ltd., now known as United Spirits Ltd.)” The Ld. CIT(A) took the view that the assessee has filed appeal in the name of a non-existent company and hence the appeal is not maintainable. When this view was pointed out by Ld. CIT(A), the assessee filed revised form No.35 with the following name:
“United Spirits Ltd. (Successor to Shaw Wallace Distilleries Ltd.)”
However, the Ld. CIT(A) took the view that the appeal already filed cannot be taken over by another entity. At the best, a new entity can file a new appeal subject to condition laid down in section 249 of the Act. Accordingly, the Ld. CIT(A) dismissed the appeal of the assessee holding the same as not maintainable.
M/s. United Spirits Limited, Bangalore
Page 3 of 4 4. The Ld. A.R submitted that the fact that present name of the assessee is M/s. United Spirits Ltd. was mentioned in the original form No.35 also. Further, a revised form No.35 was filed mentioning the name correctly. Hence, the Ld. A.R. submitted that it is not a case of substitution of the appeal but it is a case of mere rectification of form no.35 by mentioning the name in correct order. Accordingly, the Ld. A.R. submitted that the Ld. CIT(A) was not justified in dismissing the appeal of the assessee as not maintainable.
On the contrary, Ld. D.R. submitted that the assessee has filed appeal in the name of a non-existent company, which is not maintainable. Once the appeal is said to be not maintainable, any substitution by revised form no.35 is not permissible.
We heard the rival contentions and perused the record. As noticed earlier, there is a mistake in mentioning the name of the assessee in an appropriate order. The original form No.35 mentioning the name of Shaw Wallace Distilleries Ltd. and the fact of succession by M/s. United Spirits Ltd. was mentioned in the brackets. In revised form No.35, the present name of the assessee M/s. United Spirits Ltd. was mentioned and fact that its successor to earlier company M/s. Shaw Wallace Distilleries Ltd. was mentioned in the bracket. So revised form No.35 mentions the name of the assessee correctly. We notice that the revised form No.35 was filed before the Ld. CIT(A) during the course of appellate proceedings itself. Accordingly, we are of the view that the Ld. CIT(A) should have taken cognizance of the revised form No.35. Accordingly, we are of the view that he was not justified in holding the appeal filed by the assessee as not maintainable.
M/s. United Spirits Limited, Bangalore
Page 4 of 4 7. Accordingly, we set aside the order passed by Ld. CIT(A). Since the Ld. CIT(A) has not disposed of the appeal on merits, we deem it proper to restore all the issues to his file for adjudicating them afresh.
In the result, the appeal filed by the assessee is treated as allowed for statistical purposes.
Order pronounced in the open court on 30th Sept, 2021.