Learning from reported and unrepresented case of a big company : Gross negligence and carelessness of BANGALORE ELECTRICITY SUPPLY COMPANY LTD – appeal not signed properly, defect not rectified, no one appeared hence appeal was not admitted and dismissed by Tribunal.

[DEV KUMAR KOTHARI]

Learning from reported and unrepresented case of a big company :

Gross negligence and carelessness of BANGALORE ELECTRICITY SUPPLY COMPANY LTD – appeal not signed properly, defect not rectified, no one appeared hence appeal was not admitted and dismissed by Tribunal.

 BANGALORE ELECTRICITY SUPPLY COMPANY LTD ( in short BESCOM)

Bescom is a Karnataka Government Company. Websites includes

https://bescom.karnataka.gov.in/english#

In this website we find details of Board of Directors also and other departmental officers. heads.

The company was earlier a part of Electricity Board. As a major part of electricity reforms it  has taken over the responsibility from KPTCL for the distribution of electricity in 8 districts and commenced its operations from 1st June 2002.

As per master data on MCA website the company was incorporated on 30.04.2002 that is more than 20 years ago. It has many directors on its Board. There are many charges registered out of which many were discharged / satisfied and new charges were created and are open.

Directors are also directors in many other companies.

Therefore, it is clear that the company is maintaining corporate structure for long period and have complete organization to deal with compliance. In fact for taxation also compliance have been made from time to time.

Filing of appeal before Tribunal:

Filing of appeal before Tribunal is an important step. The appeal must be in prescribed form that need to be filled in correctly. Documents to be attached are to be prepared and compiled properly. Grounds of appeal before Tribunal are to be drafted properly. Appeal fees is to be paid.

In this regard, care should be taken to follow up to date Rules and Forms.

The appeal memo is required to be signed properly and by persons who can sign the  Return of Income  in case of appellant and some other person if they have proper authority.

A defect in appeal memo, if pointed out by Tribunal is not rectified within time allowed, then appeal can be rejected or can be considered as filed out of time, if rectification was delayed.

Therefore, at each stage appellant need to be careful and vigilant. Otherwise, he may loss his remedy by way of appeal.

From the order in discussion, we learn these basic aspects, which need to be remembered, reviewed, refreshed  and complied with as per latest position.

Income Tax cases in case of BESCON:

We find that earlier also, company has filed appeals before ITAT, HIGH Court and the Supreme Court in tax matters. Therefore, ignorance cannot be a reason. Not filing appeal duly signed by Managing Director was first lapse. When Tribunal asked to remove defect, then even rectifying defect by filing documents signed by MD or by  filing any Power of Attorney , was second lapse.

No one appeared before the Tribunal is third lapse in preliminaries of appeal administration. This again shows gross negligence.

Even some of initial grounds of appeal are wrong. Some grounds have been written in a manner that the CIT(A) has reopened the assessment. Whereas reopening was by the Assessing Officer, as is clear from another grounds of appeal. For example grounds 2 and 3 reads as follows:

“The CIT-A erred in reopening the assessment on the same material being the provision for Bad and Doubtful debts which was considered for addition for assessment U/s 143(3), dt.30.10.2010 added under computation of income under normal provision of Income Tax and considered the same material for reopening U/s 147 of the I.T. Act 1961 is only change of opinion which is not permitted under the Income Tax Act 1961.

The CIT-A erred in re-opening the assessment passed U/s 143(3) without bring on record any new material which has come to his possession for validity reopening the assessment. Hence, the reassessment is bad in law for want of requisite jurisdiction.”

In the next ground  confirmation of addition by AO is challenged, thus it become clear that appeal was against assessment order. And not a case of reopening by CIT(A) as  mentioned in earlier grounds.

The CIT-A erred in confirming the addition which was passed without following the Hon'ble Supreme Court decision in GKN DRIVESHAFTS (INDIA) LTD. VERSUS INCOME-TAX OFFICER AND OTHERS [2002 (11) TMI 7 - SUPREME COURT] and also the Jurisdictional Tribunal decision in SHRI A.S. CHINNASWAMY RAJU, SHRI C.S. SUNDER RAJU, SMT. INDIRAMMA, SMT. THEJOVATHI S. RAJU VERSUS ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 8 (1) , BANGALORE [2016 (10) TMI 348 - ITAT BANGALORE] as the mandatory requirement to assume jurisdiction did not exist and have not been compiled with, consequently the reassessment requires to be cancelled.

Therefore, we can say that at the time of drafting of appeal, although competence can be seen in working but there is carelessness in drafting of grounds of appeal.

Tribunal has passed justified order, yet one more opportunity was desirable:

The honorable Tribunal has considered provisions including amendment thereto about signing of appeal memo. There have been gross negligence of appellant that is true. Therefore, one cannot find any fault in the approach and order of Tribunal.

However, considering the factual situation that in such a case, it will not be possible for tribunal to recall the order and restore appeal, and order cannot also  be rectified,  if appellant make an application for these relief.  Now for seeking remedy appellant will have to approach High Court, and there also it is difficult to get relief by way of restoration of appeal or otherwise.

It is also true that if appeal was in order, other grounds of appeal, could have been allowed on merit,  in favor of appellant even if appellant was not present.

Therefore, in interest of justice it would have been better, if the Tribunal allowed one more and last opportunity to the appellant for removing defect in appeal and to represent the case.

Category of article:

Although the articles in with reference to a judgment passed under provisions of Income-tax Act, however the subject matter can be in relation to any law for filing of appeals. In every case we need to go through the relevant provisions and procedures under applicable law and follow them very carefully.