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Income Tax Appellate Tribunal, MUMBAI BENCH “B” MUMBAI
Before: SHRI S.RIFAUR RAHMAN & SHRI RAVISH SOOD
ORDER PER RAVISH SOOD, J.M:
The captioned appeal filed by the assessee is directed against the order passed by the CIT(A)-20, Mumbai, dated 22.03.2019, which in turn arises from the order passed by the A.O under Sec. 143(3) of the Income Tax Act, 1961 (for short „Act‟), dated -.03.2016. The assessee has assailed the impugned order on the following grounds of appeal before us:
“1.(a) The Commissioner of Income Tax(Appeals)-20, Mumbai [hereinafter referred to as CIT(A)] erred in dismissing the appeal holding that the Form No.35 has been verified by Appellant 'M/s Business Match Services (India) Private Limited' and has neither been verified by the Managing Director nor any other Director and hence the appeal is not valid. The Appellant submit that Form No.35 has duly been verified and digitally signed by the Director of the Appellant 'Darshansingh Balbirsingh Sandhu' and the name of the Appellant 'M/s Business Match Services (India) Private Limited' typed in Form of verification mistakenly; and hence the appeal filed by the Appellant is a valid appeal and CIT(A) ought to have decided the appeal on merit. (b) The CIT(A) erred in passing the order without providing any opportunity of being heard to the Appellant to represent its case.
2 M/s Bussinessmatch Services (India) P. Ld. Vs. DCIT-12(1)(2)
The Appellant submit that the CIT(A) ought to have given an opportunity of being heard to the Appellant. Thus, on the facts and circumstances of the case the appeal shall be set aside to the file of CIT(A) for fresh adjudication.
2. The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO in making disallowance of long term capital loss of Rs.5,04,13,516/- on sale of shares of BBIPL Infrastructure (India) Pvt. Ltd holding the same as artificial loss. The Appellant submit that on the facts and circumstances of the case and in law, the loss on sale of share of BBIPL Infrastructure (India) Pvt. Ltd shall be allowed genuine and deductible long term capital loss.
3. The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO in making disallowance of interest expense of Rs. 1,60,55,000/-u/s 37(1) of the Act by holding that same relates to unsecured loans taken during the preceding year and which were treated as non- genuine in the assessment order of preceding year. The Appellant submit that on the facts and circumstances of the case and in law, the CIT(A) ought to have allowed the interest expense of Rs. 1,60,55,000/- as deductible revenue expense.
4. The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO in making the disallowance of Bad Debts Written off of Rs.2,88,66,794/-. The Appellant submit that the bad debts are incurred in the normal course of carrying on business and hence same shall be allowed as deductible business expenditure u/s 36(l)(vii) of the I.T. Act. In the alternative and without prejudice to the above, the bad debts written off shall be allowed as business loss u/s 29 of the I.T. Act. 5.(a) The CIT(A) erred not adjudicating the ground of the Appellant against the action of the AO in making the disallowance of Rs. 1,47,34,880/- made by the AO u/s 14A of the I. T. Act r.w.r. 8D of the I.T. Rule as against disallowance of Rs.9,60,000/- made by the Appellant. The Appellant submits that it has disallowed the expenses to the extent of Rs.9,60,000/- incurred in relation to earning of exempted income and hence no further disallowance was called for. (b) The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO for invoking rule 8D of the I.T. Rules for computing disallowance u/s 14A of the I.T. Act without recording sufficient reason and satisfaction for rejecting Appellant's contention for expenses incurred for earning exempted income. (c) The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO in making disallowance u/s 14A r.w. rule 8D at Rs. 1,47,34,880/-which exceeds the total exempt dividend income earned by the Appellant. The Appellant submit that disallowance u/s 14A r.w. rule 8D cannot exceed the total exempt dividend income earned by the Appellant and at the most disallowance can be restricted to the extent of exempt dividend income earned by the Appellant.
3 M/s Bussinessmatch Services (India) P. Ld. Vs. DCIT-12(1)(2)
(d) The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO in considering strategic investment of Rs.5,95,81,000/- made in subsidiary while computing disallowance u/s 14A r.w.rule 8D. The Appellant submits that the CIT(A) ought to have excluded strategic investment made in subsidiary while computing disallowance u/s 14A r.w. rule 8D.
6. The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO in making the disallowance of interest expense of Rs.1,22,95,585/- u/s 36(l)(iii) of the Act made by the AO holding that interest bearing funds are used for giving interest free loans and advances. The Appellant submit that on the facts and circumstances of the case of the Appellant and in law, no disallowance of interest expenses is warranted and the CIT(A) shall be directed to delete the disallowances made u/s 36(l)(iii) of the Act 7. The CIT(A) erred in not adjudicating the ground of the Appellant against the action of the AO in adding expenditure of Rs.1,44,96,792/- disallowed u/s 14A r.w. rule 8D to the book profit computed u/s 115JB of the Act. The Appellant submits that disallowance u/s 14A r. w. rule 8D of the Act computed under Chapter IV of the Act has no application to books profit computed under Chapter XII-B of the Act and hence addition made by the AO shall be deleted. Your Appellant craves leave to add, to alter or to amend the aforesaid ground of appeal.”
Briefly stated, the assessee company which is engaged in the business of making investments in shares and immovable properties, finance activities and trading in shares including derivatives had filed its return of income for A.Y. 2013-14 on 30.09.2013, declaring a total loss of Rs.3,38,04,124/-. Subsequently, the assessee had e-filed a revised return of income on 31.03.2015, declaring a total loss of Rs.4,90,00,948/-. The case of the assessee was thereafter selected for scrutiny assessment under Sec. 143(2) of the Act. Original assessment was framed by the A.O vide his order passed under Sec. 143(3), dated -.03.2016 assessing the total income of the assessee company at Rs.7,24,04,830/- under the normal provisions, while for the „book profit‟ under Sec. 115JB was determined at Rs.4,68,61,535/-.
Aggrieved, the assessee assailed the assessment order before the CIT(A). Observing, that the prescribed „Form No. 35‟ was digitally signed by the appellant viz. M/s Businessmatch Services (India) Pvt. Ltd., the CIT(A)
4 M/s Bussinessmatch Services (India) P. Ld. Vs. DCIT-12(1)(2) was of the view that the same was not as per the mandate of Sec.140 of the Act r.w. Rule 45 of the Income Tax Rules, 1962. Being of the view that as per Sec. 140 of the Act, in case of a company, the appeal was required to be verified by the managing director, or any other director, the CIT(A) for the aforesaid infirmity held the appeal as invalid and dismissed the same.
The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee at the very outset of the hearing of the appeal submitted, that though the appeal e-filed with the CIT(A) on 24.01.2018 in „Form No. 35‟ was digitally signed and verified by the director of the assessee company viz. Shri Darshansingh Balbirsingh Sandhu, however, in the form of verification the name of the assessee company was on account of an inadvertent mistake wrongly mentioned. In sum and substance, it was the claim of the ld. A.R that the prescribed form for filing of the appeal was digitally signed by the aforesaid director, and the only inadvertent mistake which therein had crept was the wrong mentioning of the name of the assessee company in the form of verification. In the backdrop of the aforesaid facts, it was averred by the ld. A.R that merely for the aforesaid inadvertent typographical mistake the CIT(A) without affording any opportunity to the assessee to correct the same ought not to have dismissed the appeal by treating the same as invalid. It was, thus, submitted by the ld. A.R that the matter in all fairness may be restored to the file of the CIT(A) for fresh adjudication on merits after affording of an opportunity of being heard to the assessee appellant.
Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities.
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. As is discernible 5 M/s Bussinessmatch Services (India) P. Ld. Vs. DCIT-12(1)(2) from the order of the CIT(A), the appeal filed by the assessee was dismissed by him by treating it as invalid, for the reason, that the same as per the mandate of Sec.140 r.w. Rule 45 was not verified and digitally signed either by the managing director or any other director of the assessee company. Admittedly, the CIT(A) had correctly observed that an appeal in the case of a company is required to be verified by the managing director thereof, or where for any unavoidable reason such managing director is not able to verify the same or where there is no managing director, by any director thereof. Insofar the claim of the counsel for the assessee that the appeal was verified and digitally signed by the director of the assessee company, viz. Shri Darshansingh Balbirsingh Sandhu, and the name of the assessee company on account of an inadvertent mistake was wrongly mentioned in the form of verification, the same prima facie does not appear to be correct. On a perusal of the „Form No. 35‟, we find, that not only in the form of verification the name of the assessee company is mentioned, but, in fact even the digital signature used for such verification refers to PAN Number i.e AAACB6129N of the appellant company and not that of the director as had been stated by the ld. A.R before us. Be that as it may, in our considered view the signing of the memorandum of appeal by the assessee company and not the person prescribed as per Rule 45 was a curable irregularity which could have been rectified on the date of filing of the appeal or even subsequent thereto as the appeal was admittedly filed within the period of limitation. We hold a strong conviction that as the rules of procedure are to further the cause of justice, an approach which would scuttle the remedy and render the same as ineffective should be avoided, unless it was so specifically or by necessary implication stated in the relevant provisions. Object of every procedural law is attainment of effective and efficacious disposal of cases in conformity with the provisions of the statute. We are unable to persuade ourselves to subscribe to the view taken by the CIT(A), who on the basis of a hypertechnical interpretation or enforcement of the provisions had without even providing an opportunity to the assessee appellant to comply with the spirit of the rule, had dismissed the 6 M/s Bussinessmatch Services (India) P. Ld. Vs. DCIT-12(1)(2) appeal by treating the same as invalid. Admittedly, the provisions of Sec. 140 r.w. Rule 45 do require a managing director/director to sign and verify the appeal, but merely for the reason that on account of an inadvertent mistake the same had been digitally signed by the appellant company itself cannot justify the summarily rejection of the appeal by treating the same as invalid without confronting the said infirmity to the appellant. It is a settled canon of interpretation of procedural law that normally its non-adherence does not result in illegality which would render the appeal incompetent, unless such non-compliance related to a substantive provision and had caused prejudice to the other party and may have the effect of taking away a settled right. In fact, we are of the considered view that law relating to procedure may always not prove fatal to the proceedings initiated by the assessee and it would be in the interest of justice, fair and equitable to provide an opportunity to the assessee to rectify the irregularity in regard to compliance to the procedural rules unless the non-compliance to the procedure is of such a nature that it necessarily creates a bar or takes away a substantive right vested in the other side. Accordingly, in a case where the appeal is filed in accordance with the form but is not signed by the person specified under Rule 45, we are of the considered view that in all fairness the appellant should be granted an opportunity to correct this error rather than dismissing of the appeal as not maintainable when the same is otherwise complete in all respects and has been filed within the prescribed period of limitation. To sum up, the non- adherence of some part of the rule per se may not be a ground for rejecting the memorandum of appeal and it will be more appropriate for the appellate authority concerned to have granted an opportunity to the assessee to remove the defect, if any, provided the appeal was in substantial compliance to the provisions of Rule 45 and has been filed within the period of limitation. Our aforesaid view is fortified by the judgments of the Hon’ble High Court of Madhya Pradesh in the case of CIT Vs. Hope Textiles Limited (2006) 287 ITR 321 (M.P) and the Hon’ble High Court of Delhi in the case of Remfry & Sons Vs. CIT (2005) 276 ITR 1 (Del).
7 M/s Bussinessmatch Services (India) P. Ld. Vs. DCIT-12(1)(2)
Accordingly, in the backdrop of our aforesaid deliberations, we are of the considered view that in all fairness the appeal of the captioned assessee merits to be restored to the file of the CIT(A) who shall after affording an opportunity to the assessee appellant to correct the aforesaid error, therein, dispose off the appeal on the basis of a speaking order in accordance with law. We, thus, restore the appeal to the file of the CIT(A) in terms of our aforesaid directions.
The appeal of the assessee is allowed for statistical purposes in terms of our aforesaid observations.