KDL BIOTECH LTD.,RAIGAD vs. ACIT CENT CIR. 30, MUMBAI

Aforesaid appeals by the same assessee are against three separate orders passed by the learned Commissioner of Income Tax (Appeals)–51, Mumbai, for the assessment years 2008–09, 2010–11 and 2011–12.

When these appeals were called for hearing, no one was present on behalf of the assessee. Even, there was no application by the assessee seeking adjournment. As seen from the record, the learned Authorised Representative who was appearing for the assessee earlier has brought to the notice of the Bench that the company is under liquidation and Official Liquidator has been appointed to initiate the process for winding up of the company. On the basis of the aforesaid information, though, hearing notices were sent to the Official Liquidator per registered post by the Registry, as well as, through the office of the learned Departmental Representative, however, there have been no response in spite of service of notices as evident from the service returns kept in the appeal folder relating to Mum./2016. In the aforesaid circumstances, we have no other option but to proceed to dispose–off these appeals ex parte qua the assessee after hearing the learned Departmental Representative.

As could be seen, the memorandum of appeal in Form no.36, filed by the assessee before the Tribunal was not signed and verified by the Managing Director. Therefore, the Registry treating the appeals as defective issued notices to the assessee to rectify the defects. However, till the date of hearing of appeals, no steps have been taken to rectify the defects pointed out by the Registry. As per rule 47(1) r/w rule 45(2) of the Income Tax Rules, 1962, the memorandum of appeal in Form no.36 has to be signed and verified by the person who is authorized to file the return of income as per section 140 of the Income Tax Act, 1961 (for short “the Act”). In case of a company, as per section 140(c) of the Act, the verification has to be signed by the Managing Director of the company or in a case where the Managing Director is not available or there is no Managing Director then by any one of the Directors. In the present case, the memorandum of appeal in Form no.36 has not been signed by the Managing Director. The assessee has also not explained why the provisions of rule 47(1) and 140(c) have not been complied with. Since, the defect pointed out by the Registry has not been removed, the appeals filed by the assessee are to be treated as defective appeals, hence, cannot be admitted. In view of the aforesaid, we dismiss the appeals in limine without admitting them. However, liberty is given to the assessee to seek recall of this order subject to removal of the defects pointed out by the Registry.

In the result, appeals are dismissed. Order pronounced in the open Court on 23.08.2018