M/S ROSEMERY MECHANTS PRIVATE LIMITED,SILIGURI vs. I.T.O WD - 2(2),KOLKATA, SILIGURI

This appeal filed by the assessee is directed against the order of Ld. CIT(A), Siliguri dated 06.09.2012 whereby he dismissed the appeal of the assessee in limine by treating the same as invalid.

The assessee in the present case is a company which filed its return of income for the year under consideration on 30.12.2011 declaring a total income at Nil. In the assessment completed u/s 144 of the Act vide an order dated 30.12.2011, the total income of the assessee was determined by the A.O. at Rs. 3,25,56,700/- after making additions of Rs. 197 lacs on account of share application money, Rs. 30 lacs on account of unsecured loan and Rs. 98,56,697/- on account of sundry creditors by treating the same as unexplained cash credits u/s 68.

Against the order passed by the A.O. u/s 144, an appeal was preferred by the assessee before the Ld. CIT(A) disputing the addition made by the A.O. u/s 68. As noticed by the A.O., the said appeal, however, was not signed and verified by the assessee. He, therefore, treated the appeal filed by the assessee as invalid and dismissed the same at the threshold. He also did not allow the opportunity to rectify the mistake as sought by the assessee observing that allowing such opportunity would in any case result in delay of more than 7 months which could not be condoned in the absence of any valid reason. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal.

We have heard the arguments of both the sides and also perused the relevant material available on record. As held by the Hon’ble Calcutta High Court in the case of Sheonath Singh vs. CIT 33 ITR 591 cited by the learned counsel for the assessee, the absence of or defect in the signature of any appellant in the memorandum of appeal is not an illegality or fatal but only an irregularity which could not be rectified by amendment. It was also held by the Hon’ble Calcutta High Court that such amendment would take effect from the date when the memorandum of appeal as originally filed. Respectfully following the decision of Jurisdictional High Court in the case of Sheonath Singh (supra), set aside the impugned order passed by the Ld. CIT(A) and remit the matter back to him with the direction to allow an opportunity to the assessee to rectify the memorandum of appeal and to decide the appeal of the assessee after such rectification on merit after giving the assessee proper and sufficient opportunity of being heard.