TMI Blog2010 (3) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... mineral oil , (so as to exclude production of natural gas as eligible under section 80-IB(9) of the Act) before the Hon ble Gujarat High Court and, subsequently, by way of amendment Circular issued to the CBDT dated 27-3-2009, the Hon ble in the first instance was pleased to direct the Assessing Officer not to serve the assessment order along with the notice of demand if the assessment had already been framed. However, as a result of modified order of the Hon ble Jurisdictional High Court dated 16-6-2009, the assessment order along with demand notice were served on the assessee on 20-6-2009, in the case of Cairn Energy India West BV Surat and dated 22-6-2009 in the case of Cairn Energy Cambay BV, Surat. Thereafter, the assessees filed the appeals before the Learned CIT (Appeals) on 30-6-2009. 3. In the case of Cairn Energy India West, BV [IT Appeal No. 86 (Ahd.) of 2010], the Learned CIT (Appeals) found that memo of appeal filed by the assessee was not signed in ink and the date is missing in Form No. 35. Therefore, he issued a notice/letter dated 9-11-2009 wherein it has been stated that "the appeal filed by the assessee liable to be treated as non est is an invalid appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the above, the defect in Form 35 if any is curable and the learned CIT(A) has failed to appreciate that the assessee has filed fresh Appeal Memo in Form 35 on 26-11-2009 duly complying the show-cause notice dated 9-11-2009 with signature of the authorized person in ink and therefore, the appeal could not be treated as invalid in Law. 4. THAT without prejudice to the above, the contention of the assessee that at best filing of revised form 35 filed on 26-11-2009 after removing the defects, can be considered as delay in filing the appeal and in the circumstances of the case the aforesaid delay deserves to be condoned and the appeal be heard and disposed of on merits. 5. THAT the learned CIT(A) has failed to appreciate that when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred and hence, the order of learned CIT(A) in dismissing the appeal as invalid without adjudicating the grounds of appeal on merits is patently wrong and deserves to be quashed. The ld. CIT(A) has failed to appreciate that the assessee has filed a detailed PB containing 433 pages in support of its appeal which have been com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be quashed. 2.2 THAT without prejudice to the above, the defect in Form 35 if any is curable and the learned CIT(A) has failed to appreciate that the Appellant has filed fresh Appeal Memo in Form 35 on 4-12-2009 suo motu with signature of the authorized person in ink and date therefore, the appeal could not be treated as invalid in Law. 2.3 THAT without prejudice to the above, the contention of the Appellant that at best filing of revised Form 35 filed on 4-12-2009 after removing the defects, ought to have been considered as valid appeal and in the facts and circumstances of the case the aforesaid delay if any deserves to be condoned and the ld. CIT(A) ought to hear and dispose the appeal on merits. 3. THAT without prejudice to the above grounds of appeal on validity of order of ld. CIT(A) of dismissing an appeal of the Appellant in limine , the ld. CIT(A) also erred in confirming the action of the ld. Assessing Officer in assessing the total income at Rs. 97,21,44,130 as against returned income at Nil computed under the normal provisions of the Act and the assessment order passed is wrong and bad in law. In ITA No. 459/Ahd./2010 - Cairn Energy Cambay BV, Surat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not stated the date in memo of appeal and appeal was filed with scanned-signatures of authorized signatory can only be called to be irregularity/deficiency and was curable one. The Learned Authorised Representative of the assessee further submitted that it is an accepted proposition of law that there may be a mistake or defect but once that defect is cured, it no longer persists and after curing of a defect the same can definitely be acted upon. In support of this proposition, reliance was placed on the decision of ITAT Bangalore Bench in the case of Wipro Information Technology Ltd. v. Dy. CIT [2004] 88 TTJ (Bang.) 778. 6.1 The defect in filing the appeal is a curable defect and in view of the provisions of section 292B of the Income-tax Act, 1961, no proceedings shall be deemed to be invalid merely by reason of any mistake, defect or omission in the same, if such proceeding is in substance and in effect in conformity with or according to the intent and purpose of the Act. Accordingly, the Learned Authorised Representative of the assessee submitted that the Learned CIT (Appeals) was hyper technical in procedural matter, when he had dealt with signature was not in ink. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be signed and verified by the person". 9. With regard to objection of ld. CIT(A) that appeal filed before him was "not in ink", the Learned Authorised Representative of the assessee submitted that that the Learned CIT (Appeals) has not disputed that it does not bear the signature of the person who is authorized to sign or the appeal filed before him had been unsigned. Therefore, the only question is whether when the Statute requires that the document to be signed, does it also mean that the document be to be "signed by ink". He submitted that there is no such requirement. A document can be signed by any mode or manner but is the only requirement that it should be signed. Therefore, it should be held that documents were signed. Our attention was also drawn to the " Stroud s Judicial Dictionary " which defines sign/signature as under : "Speaking generally, a signature is the writing , or otherwise affixing, a person s name, or a mark to represent his name, by himself or by his authority . [R.v. Justice L.R. 80.B. 305] With the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed. In Morton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, further, submitted that there is no requirement under the Statute, which requires the signature to be made in ink and which signed can be by any mark of identification. Therefore, certainly it is not comprehensible to content that the appeal which borne the sign and were scanned-signature was not signed appeal. The scanned-signature is permissible in law. It is stated that on account of advancement in the technologies such an appeal filed cannot be said to be unsigned appeal. In fact, on account of advancement of the technologies, there is statutorily providing an e-filing of a Return of income which also bear scanned or digital signatures. 11. Alternatively, the Learned Authorised Representative of the assessee submitted that during the course of hearing of the appeals, fresh appeals memo were filed and the Learned CIT(Appeals) is legally and factually correct in treating those appeals memo to be dealt with separately on merits. The Learned Authorised Representative of the assessee submitted that before the Learned CIT (Appeals) the assessee is required to file original notice of demand. The fresh appeals memo submitted were without original notice of demand (because these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have decided all the three appeals of the assessee(s) on merits instead of becoming hyper technical in procedural matter. We, therefore, held that once the assessee has filed fresh appeal(s) memo which borne the signature in ink, date and place, etc., the Learned CIT (Appeals) ought to have treated that defects removed. Against one order, only one appeal can be filed along with the original notice of demand. We are, therefore, afraid that the Learned CIT (Appeals) in separate proceedings dismissed all the fresh three appeals on the ground that the assessee has not enclosed the original Notice of Demand. As a matter of fact, with the fresh memo, original notice of demand cannot be furnished because these were already furnished along with original appeal(s) memo. The appeals filed by the assessee with the original notice of demand, in our opinion, are valid subject to removal of defect, if any, which the Learned CIT (Appeals) may point out. Once the defect is removed, the Learned CIT (Appeals) clearly erred in dismissing the appeal(s) non est/invalid and dismissing in limine. Against one assessment order, assessee can file only one appeal. In these cases, both the assessees, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the memorandum of appeal presented to the Appellate Tribunal is not an illegality but only a mere irregularity which can be rectified by an amendment, the amendment taking effect from the date the memorandum of appeal was originally filed. It is incumbent on the Appellate Tribunal to allow the assessees to amend the memorandum of appeal by affixing his signature thereto. Where a memorandum of appeal signed by the power of attorney agent was originally presented in time but when after the period of limitation had expired the case came up for hearing and the assessee presented a petition for amending the memorandum : appeal and filed a fresh memorandum of appeal signed by her : Held, that there was a proper appeal presented before the Income-tax Appellate Tribunal and the appeal could not be dismissed on the ground that it was barred by time". ( iv )In the case of Rajendrakumar Maneklal Sheth (HUF) v. CIT [1995] 213 ITR 715 (Guj.). In this judgment, the Hon ble Jurisdictional High Court held (at page No. 417) The Appellate Assistant Commissioner had exercised his discretionary jurisdiction and had condoned the delay and admitted the appeal for adjudication on the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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