Asiatic Colourchem Industries Ltd.,,, ... vs Assessee

सम ी एन.एस.सैनी, लेखा सद य एवं ी कुल भारत, या यक सद य । BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER

MA No.26/Ahd/2015 - A.Y. 2001-02 ( in आयकर अपील सं./in I.T.A. No. 1933/Ahd/2011 - AY 2001-02)

Asiatic Colour Chem Indu.Ltd. बनाम/ The Dy.CIT (OSD) 1503, GIDC Estate Vs. Range-1 Phase-I, Naroda Ahmedabad Ahmedabad-382 330 (original appellant) (original respondent) थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AABCA 6297 R (अपीलाथ# /Applicant) .. ($%यथ# / Respondent)

अपीलाथ# ओर से / Applicant by : Shri Chirag Shah, AR $%यथ# क' ओर से/Respondent by : Shri Dinesh Singh, Sr.DR

सन ु वाई क' तार*ख / Dat e of H e a r i ng 19/06/2015 घोषणा क' तार*ख /Da t e of Pr o n o u n c em e n t 24/06/2015

आदे श / O R D E R

PER SHRI KUL BHARAT, JUDICIAL MEMBER :

This miscellaneous application has been filed by the Assessee on 17.04.2015 (arising out of ITA No.1933/Ahd/2011 for AY 2001-02) seeking for recalling the order dated 30/12/2014 passed by the ITAT "C" Bench, Ahmedabad.

MA No.26/Ahd/2015 (in ITA No.1933/Ahd/2011) Asiatic Colour Chem Indu.Ltd. vs. The Dy.CIT(OSD) Asst.Year - 2001-02 -2-

2. The ld.counsel for the assessee reiterated the submissions as were made in the miscellaneous application. The relevant portion of the assessee's application dated 16.4.2015 is reproduced hereunder:-

1. With reference to the above the appellant would like to state that the referred order has been passed by dismissing the appeal as defective and not considering the merit of the case. The honorable tribunal passed the order as defective because along with the filing of appeal copy of Form No.35 was not attached and as this defect was not cured till the time of hearing.

2. Against the above fact the appellant would like to state that Form No.35 was not filed with appeal memo as the same was misplaced and could not be found in time. However the copy of the same is now available which is enclosed herewith for your honour's ready reference. So it is our humble request considering the mention facts that the technical defect may now be considered as rectified and recall the referred order so as to decide the appeal on merits.

3. Further the appellant would like to rely on the recent judgement of Delhi high court in case of Remfry and Sons v. CIT [2005] 276 ITR 1 (Delhi) where it was held that when appeal is filed in time the defects in the appeal which may arise out of procedural irregularity, so that failure to comply with the same cannot jeopardize a remedy provided by law, the basic object of which is "attainment on effective and efficacious disposal of cases in conformity with provisions of the statue". A hyper-technical interpretation, it was felt, would be against the spirit of the basic rule of law and interpretation, it was felt, as was decided in a matter relating to procedure prescribed under the civil procedure code by the Supreme court in united Bank of India v. Nareshkumar [1997] 90 Comp Cas 329."

2.1. However, ld.Sr.DR Shri Dinesh Singh strongly opposed the application of the assessee and submitted that the assessee has not pointed out any mistake in the Tribunal order dated 30/12/2014(supra).

MA No.26/Ahd/2015 (in ITA No.1933/Ahd/2011) Asiatic Colour Chem Indu.Ltd. vs. The Dy.CIT(OSD) Asst.Year - 2001-02 -3-

3. We have heard the rival submissions, perused the material available on record. We find that this Tribunal was pleased to dismiss the appeal on the ground that the assessee had not filed Form No.35 along with grounds of appeal. As per Rule 9(3), the Tribunal may in its discretion accept a memorandum of appeal which is not accompanied by all or any of the documents referred to in sub-rule(1). The assessee has cured the defect by filing a Form No.35 along with miscellaneous application. Under these facts, we deem it proper to recall the Tribunal order dated 30/12/2014 passed in ITA No.1933/Ahd/2011 for AY 2001-02(supra) and direct the Registry to fix the assessee's appeal in ITA No.1933/Ahd/2011 for AY 2001-02 for hearing on 27/08/2015. Both the parties were informed in Court and the notice of hearing is therefore dispensed with the consent of both parties.

4. In the result, the miscellaneous application filed by Assessee is allowed.

Order pronounced in the Court on Wednesday, the 24th day of June, 2015 at Ahmedabad.

Sd/- Sd/- (एन.एस.सैनी) (कुल भारत) लेखा सद य या यक सद य ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER

Ahmedabad; Dated : 24/ 06 /2015 ट*.सी.नायर, व. न.स./T.C. NAIR, Sr. PS MA No.26/Ahd/2015 (in ITA No.1933/Ahd/2011)

Asiatic Colour Chem Indu.Ltd. vs. The Dy.CIT(OSD) Asst.Year - 2001-02 -4-

आदे श क !त#ल$प अ%े$षत/Copy of the Order forwarded to :

1. अपीलाथ# / The Applicant

2. $%यथ# / The Respondent.

3. संबं4धत आयकर आयु6त / Concerned CIT

4. आयकर आयु6त(अपील) / The CIT(A)-VI, Ahmedabad 7वभागीय $ त न4ध, आयकर अपील*य अ4धकरण, अहमदाबाद / DR, ITAT, Ahmedabad

5.

6. गाड; फाईल / Guard file.

/ आदेशानुसार BY ORDER,

स%या7पत $ त //True Copy//

Dy./Asstt.Registrar) उप/सहायक पंजीकार ( आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad

1. Date of dictation .. 22.6.15 (dictation-pad 3+ pages attached at the end of this File)

2. Date on which the typed draft is placed before the Dictating Member ..22.6.15

3. Other Member...

4. Date on which the approved draft comes to the Sr.P.S./P.S.................

5. Date on which the fair order is placed before the Dictating Member for pronouncement......

6. Date on which the fair order comes back to the Sr.P.S./P.S.......24.6.15

7. Date on which the file goes to the Bench Clerk.....................24.6.15

8. Date on which the file goes to the Head Clerk..........................................

9. The date on which the file goes to the Assistant Registrar for signature on the order..........................

10. Date of Despatch of the Order..................