2018 (10) TMI 1285 - AT - Income Tax

Maintainability of Appeals to the Appellate Tribunal - Eligibility of person who verified and signed the Form No.36 and attachments thereto - assessee company being would up - assessee in default u/s 201 - Held that - We have carefully perused the Form No.36 filed in the name of the assessee company on 12/4/2018, the grounds of appeal and other attachments filed before us and find that they have been verified and signed by one Shri V.Balaji Bhat, said to be ex-Director of the assessee company. In view of the fact that the assessee company was wound up by the decision of the Hon ble Karnataka High Court dated 8/10/2012 and an Official Liquidator being appointed by that order, the erstwhile Directors of the assessee company are rendered functus officio and therefore the person who verified and signed the Form No.36 and attachments thereto has done so in clear violation of the provisions of section 253(6) of the Act r.w. Rules 45(2) and 47(1) of the IT Rules, 1962 ( the Rules ). Thus the present appeal for assessment year 2011-12 filed on 12/4/2018 in Form No.36 and attachments thereto are invalid and non est and therefore dismiss the appeal in limine.

Issues: Appeal against order of Commissioner of Income-tax(Appeals)-V, Bangalore for assessment year 2011-12; Condonation of delay in filing appeal; Validity of appeal filed by ex-director after company's winding up.

Analysis:

1. Appeal against CIT(A) Order: The appeal was filed by the assessee against the order of the Commissioner of Income-tax(Appeals)-V, Bangalore, for assessment year 2011-12. The assessee was held to be in default for not remitting the tax deducted at source to the Government account within the prescribed time. The CIT(A) dismissed the appeal for non-prosecution without condoning the delay in filing. The Tribunal noted the delay in filing the appeal and examined the reasons provided by the assessee. The delay was attributed to the receipt of the impugned order by the assessee from the Special Court for Economic Offences at a later date. However, the Tribunal observed that the appeal was filed almost 4.5 years later, raising concerns about the validity of the delay explanation.

2. Condonation of Delay: The Tribunal delved into the peculiar facts of the case, highlighting that the assessee company was wound up by the order of the Karnataka High Court before the appeal was filed before the CIT(A). The appeal was filed by a director of the company, not by the Official Liquidator appointed after winding up. The Tribunal emphasized that the appeal filed before the CIT(A) was invalid due to non-disclosure of the company's winding-up status and the involvement of the Official Liquidator. The Tribunal scrutinized the subsequent appeal filed by an ex-director and found it to be in violation of legal provisions as the directors were rendered functus officio after winding up, making the appeal invalid.

3. Validity of Appeal Post Winding Up: Considering the legal consequences of winding up a company, including the appointment of an Official Liquidator and cessation of powers of the Board of Directors, the Tribunal concluded that the appeal filed by the ex-director was invalid and non est. The Tribunal, based on the provisions of the Income Tax Act and Rules, dismissed the appeal in limine due to its invalidity post the company's winding up.

4. Final Decision: The Tribunal dismissed the assessee's appeal for assessment year 2011-12, emphasizing the invalidity of the appeal filed by the ex-director after the company's winding up. The decision was based on legal provisions governing appeals in such circumstances, leading to the dismissal of the appeal in limine.

This detailed analysis of the judgment highlights the intricacies of the case, focusing on the validity of the appeal in light of the company's winding-up status and the legal implications of filing appeals post such events.

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