Osian’s Connoisseurs of Art Pvt. Ltd Vs DCIT (ITAT Mumbai)
ITAT held that once interim resolution professional has been appointed by the NCLT, then earlier Ld. counsel authorized by the Management of the Company has no authority to represent the case and therefore adjournment sought on his behalf was accordingly rejected. The Tribunal in ITA No. 2979 to 2981/Mum/2020 in the case of Orbit Corporation Limited has observed that once the winding up proceedings are initiated against the assessee, the appeals by the assessee as well as Revenue are not maintainable in the present format as the liquidator had not come up before the Tribunal to file the amended Form No. 36A in case the assessee as well as Revenue’s appeal. Under those circumstances, the appeals were held to be non-maintainable.
Following the above finding of the Tribunal (supra), we find that in the instant case also the Form No. 36A has not been amended. Therefore, this appeal is not maintainable in the present format.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
This appeal has been preferred by the assessee against order dated 17.03.2020 passed by the Ld. Principal Commissioner of Income Tax-3, Mumbai (in short ‘PUT’) for assessment year 2015- 16, setting aside the order of the Assessing Officer. The grounds raised by the assessee are reproduced as under:
1. The Ld. PCIT has erred in law and on the facts of the case in reopening the assessment u/s 263 of the Income Tax Act.
2. The Ld. PCIT has erred in law and on the facts of the case in holding that the assessment order dated 15.12.2017 is erroneous and prejudicial to the interest of Revenue.
2. At the outset, we may like to mention that neither anyone attended on behalf of the assessee despite notifying nor any adjournment was filed. It was informed by the Ld. Departmental Representative (DR) that one of the lenders (creditor) of the assessee-company referred the matter to National Company Law Tribunal (NCLT) under the insolvency and bankruptcy code. The application of the creditor has been accepted and interim resolution professional has also been appointed. Before us, the adjournment application was filed by the Chartered Accountant Shekhar Gupta. In our opinion once interim resolution professional has been appointed by the NCLT, then earlier Ld. counsel authorized by the Management of the Company has no authority to represent the case and therefore adjournment sought on his behalf was accordingly rejected. The Tribunal in ITA No. 2979 to 2981/Mum/2020 in the case of Orbit Corporation Limited has observed that once the winding up proceedings are initiated against the assessee, the appeals by the assessee as well as Revenue are not maintainable in the present format as the liquidator had not come up before the Tribunal to file the amended Form No. 36A in case the assessee as well as Revenue’s appeal. Under those circumstances, the appeals were held to be non-maintainable.
2.1 Following the above finding of the Tribunal (supra), we find that in the instant case also the Form No. 36A has not been amended. Therefore, this appeal is not maintainable in the present format.
3. Resultantly, the aforesaid appeal is dismissed being not maintainable at this stage. However, the assessee is given liberty to file a fresh appeal in the proper format duly verified by the person authorized to file return of income or to get the present appeal restored by moving in application by the Competent Authority, if any relief is allowed to assessee by the NCLT to pursue these appeals.
Order pronounced in the open Court on 06/04/2022.
