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TMI Blog2005 (1) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... re this court in this appeal filed under section 260A of the Income-tax Act, 1961 ("the Act" for short). Though two questions of law are raised for our consideration and decision, in our opinion, only the first question of law raised in the memorandum of appeal requires our consideration in this appeal. The said question of law is as under: "Whether the Tribunal was correct in dismissing the appeal and the miscellaneous petition filed by the Revenue against the order of the Appellate Commissioner setting aside the penalty levied on the ground that the annexures and the form filed along with the appeal memo did not disclose the correct number of the impugned order without providing the Revenue an opportunity to rectify the defect and considering the matter on merits by recording a finding on the controversy before it when a specific ground as to the challenge to the penalty order had been made in the appeal memo filed by the Revenue." The facts as stated in the memorandum of appeal by the Revenue are as under: For the assessment year 1992-93, the assessee had filed its return of income declaring a total income of Rs. 5,89,240. The assessing authority had taken up the returns f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of the learned Departmental Representative, Shri V. Mahalingam, he was fair enough to submit that the Commissioner of Income-tax concerned has not permitted him to challenge the order of the Commissioner of Income-tax (Appeals) in respect of the quantification of total income passed under section 143(3) of the Income-tax Act. Even the order appealed against attached with the appeal memo is in respect of the appellate order against the assessment order under section 143(3) of the Act. No ground has been raised in respect of the order of the Commissioner of Income-tax (Appeals). It is, therefore, clear that the appeal seems to have been filed mechanically and without proper application of mind. This has put the assessee in great trouble. This also has taken the valuable time of this Tribunal. This would have been a fit case to award costs to the assessee. However, since the learned Departmental Representative was fair enough to concede that there has been a genuine mistake, though the appeal may be dismissed, no further damage be done to the revenue authorities. Seemingly there is no mala fide intention. So we do not award any costs. However, we caution the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on either to reject the appeal in limine or to return the appeal papers to the party who has filed the appeal to make appropriate corrections in the memorandum of appeal within a particular time. Therefore, in our opinion, the said decision may not assist learned senior counsel. Section 253(2) of the Act authorises the Commissioner of Income-tax to direct the Assessing Officer to file an appeal to the Appellate Tribunal if he objects to any order passed by the Deputy Commissioner (Appeals) or, as the case may be, a Commissioner (Appeals) under section 154 or section 250 of the Income-tax Act, 1961. Sub-section (6) of section 253 of the Act envisages that an appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner. Rule 47 of the Income-tax Rules, 1962, specifies the form of appeal and memorandum of cross-objections to the Appellate Tribunal. Sub-rule (1) of rule 47 of the Rules specifies that an appeal under sub-section (1) or subsection (2) of section 253 of the Act to the Appellate Tribunal requires to be made in Form No. 36. Apart from other requirements that should be filled while filing Form No. 36 to the Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Assessing Officer under section 271(1)(c) of the Act by relying on the observations made by the Bombay High Court in the case of CIT v. Dharamchand L. Shah [1993] 204 ITR 462. The Tribunal after noticing the aforesaid ground raised in the memorandum of appeal, further observes, that even before the Tribunal, the Departmental Representative had very fairly conceded that he was not authorised by the competent authority to challenge the order of the Commissioner of Income-tax (Appeals) in respect of the quantification of the total income passed under section 143(3) of the Act and the order appealed against attached with the appeal memo is in respect of the appellate order against the assessment order passed under section 143(3) of the Act and no ground has been raised in respect of the order of the Commissioner of Income-tax (Appeals) and, therefore, after coming to the conclusion that the appeal seems to have been filed mechanically and without proper application of mind, it dismisses the appeal filed by the Revenue. In the appeal filed, the Revenue instead of requesting the Tribunal to set aside the order passed by the Commissioner of Income-tax (Appeals) in so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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