2005 (3) TMI 64 - HC - Income Tax

Distinction between the expressions illegality irregularity procedural irregularity and whether it is curable or should prove fatal to the case of the assessee. held that irregularity covers any case thing that has not been done in the manner laid down by the statute and thus this word does not cover a case of procedural irregularity only. One of the basic distinctions between the two expressions is the resultant effect of its being curable or incurable. Normally the illegality which goes to the very root of the matter or jurisdiction could hardly fall in the class of those cases but an irregularity which is merely procedural and it has even been substantially complied with then to bring such a case within the class of cases where irregularity is curable would be a fair and just interpretation of the relevant rule Therefore it is held that the irregularity committed by the assessee was curable and could be rectified on the date of its filing and even subsequent thereto as the appeal admittedly was filed within the period of limitation.

Issues Involved:
1. Whether the Tribunal is right in law in holding that an opportunity for curing a defect would carry meaning when the defect could have been cured on the day when the defect occurred.
2. Whether the Tribunal is right in law in holding that a procedural defect could be cured ex post facto only if it could have been cured on the day it occurred.
3. Whether the Tribunal was justified in law in holding that the appeal filed before the Commissioner of Income-tax (Appeals) signed by the professional representative of the assessee was liable to be declared incompetent.

Issue-wise Detailed Analysis:

1. Opportunity for Curing a Defect:
The Tribunal held that an opportunity for curing a defect would carry meaning only if the defect could have been cured on the day it occurred. The High Court disagreed, emphasizing that procedural rules are meant to further the cause of justice. The court highlighted that procedural defects, such as the one in question, should not be fatal to the case if they can be rectified. The court noted that the rules of procedure should not be enforced hyper-technically, especially when the defect is curable and does not affect the substantive rights of the parties.

2. Procedural Defect and Ex Post Facto Cure:
The Tribunal's stance was that a procedural defect could only be cured ex post facto if it could have been cured on the day it occurred. The High Court refuted this, stating that procedural laws should be construed liberally to allow for the rectification of defects even after they occur. The court referred to various precedents, including the Supreme Court's decision in United Bank of India v. Naresh Kumar, which emphasized that procedural defects should not defeat a just cause. The court underscored that non-compliance with procedural rules should not render an appeal incompetent unless it causes prejudice to the other party or affects substantive rights.

3. Competence of Appeal Signed by Professional Representative:
The Tribunal declared the appeal incompetent because it was signed by the professional representative of the assessee rather than a managing partner or partner as required by rule 45. The High Court disagreed, stating that the rules should be applied to further justice and not to create unnecessary barriers. The court noted that the appeal was filed within the limitation period and was signed by an authorized representative who had been handling the case. The court emphasized that substantial compliance with procedural rules should be sufficient and that the assessee should be given an opportunity to rectify any defects.

Conclusion:
The High Court concluded that the irregularity committed by the assessee was curable and could be rectified even after the appeal was filed, as it was within the limitation period. The court set aside the orders of the Income-tax Appellate Tribunal and the Commissioner of Income-tax (Appeals), and remanded the matter to the Commissioner of Income-tax (Appeals) for a fresh hearing in accordance with the law. The court directed the parties to appear before the Commissioner on April 4, 2005, at 11 a.m., and ordered that each party bear its own costs.

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