IN INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI, BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.A.No. 88 Mds 2016 (in ITA No. 818 Mds 2015) Assessment Year : 2010-11 M s. Daewon Kang Up Co. Ltd., Deputy Director of Income- 16-5, Namdaemunno 5-GA, v. tax, Chung-Gu Seoul, International Taxation-I, Korea 100 095. Chennai 34. PAN AADCD7280P ( Respondent) (Applicant) Applicant by : Shri Raghunathan Sampath, Advocate Respondent by : Shri Shiva Srinivas, JCIT Date of Hearing : 19.08.2016 Date of Pronouncement : 21.09.2016 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER By this Misc. Application, assessee seeks recall of order of Tribunal dated 18.03.2016 in ITA No.818 Mds 2015. 2. Tribunal on earlier occasion, dismissed appeal of -2- MA 88 2016 assessee by observing as follows : 4. We have heard both parties and perused material on record. As per provisions of section 140(c) of Act in case of company, who is non- resident in India, appeal documents required to be signed and verified by person who holds valid power of attorney from such company to do so, which shall be attached to appeal of memorandum. In this case, one Mr. Yoo Young Jai has signed appeal of Memorandum and also verified same. However, valid power of attorney given to him to sign appeal documents was not attached thereto. Being so, there is force in argument of Ld. D.R and this appeal is defective, accordingly dismissed in limine. 3. ld. AR submitted that appeal of assessee was dismissed in limine, since original Power of Attorney (POA) for authorized signatory was not attached with appeal papers. copy of said POA is enclosed with petition, which is to be considered as rectified appeal papers. Further, ld. AR requested to condone mistake, recall earlier order of Tribunal and fix case for hearing. He, also submitted that in similar circumstances, where there is mistake by assessee, while presenting appeal, same was condoned by various courts in following cases : 1. M s. Asmitha Microfin Ltd. V. Addl. CIT - MA No.91 Hyd 2014 (in ITA No.137 Hyd 14) dated 13.6.2014 -3- MA 88 2016 2. M s. Maya Tradelink Ltd. V. DCIT - MA No.72 Kol 12 (in ITA No.1510 Kol 2011) dated 20.7.2012 3. Asiatic Colour Chem India Ltd. V. DCIT MA No.26 Ahd 2015 (in ITA No. 1933 Ahd 2011) dated 24.6.2015. 3.1 He also relied on order of this Tribunal in case of M s. Indian Airlines Ltd. V. DCIT ITA No.72 Del 2011dated 30.9.2011, wherein it was held as under : 12.4. At this stage, it may be appropriate to refer to similar provisions of Code of Civil Procedure. In terms of 0.6 rr 14 and 15, there is obligation upon plaintiff to sign and verify plaint by duly authorized person. In event of such signing and verification is defective, either for want of authority or on such similar grounds, in that event, it would not be proper to reject plaint under provisions of O. 7, r.11 of CPC, but opportunity should be provided to plaintiff to correct defect so that substantive dispute between parties can be decided. In case of United Bank of India vs Naresh Kumar and another 1996 (6) SCC 660, their Lordships of Apex Court while referring to law of practice and procedure considering objection M s Indian Air Lines Limited (Now Air India Ltd) that plaint was not signed and verified in accordance with law by duly authorized person. suit had been dismissed by Courts below their Lordships sitting in Supreme Court held : "............... Procedural defects which do not go to root of matter should not be permitted to defeat just cause. There is sufficient power in Courts, under Code of Civil Procedure, to ensure that injustice is not done to any party who has just case. As far as possible substantive -4- MA 88 2016 right should not be allowed to be defeated on account of procedural irregularity which is curable." They further opined as under. ".................. If, for any reason whatsoever, Courts below were still unable to come to this conclusion, then either of appellate Courts ought to have exercised their jurisdiction under O. 41, r. 27(1) (b) of CPC and should have directed proper power of attorney to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as witness in order to prove ratification or authority of Sh. L.K.Rohatgi to sign plaint. Such power should be exercised by Court in order to ensure that injustice is not done by rejection of genuine claim." 12.5. Substantial compliance to rules of procedure has normally been accepted by Courts and consistent view appears to be that doors of adjudication should not be shut on applicant at very threshold of proceedings, unless there was violation of substantive provision which resulted in settlement of right of parties. Procedural law is panacea for achieving goal or object of fair M s Indian Air Lines Limited (Now Air India Ltd) adjudication. Applying this principle, Supreme Court in case of Ragu Thilak D John vs S Rayappan & others AIR 2001 SCW 342 while relying upon judgements of Supreme Court in L.J. Leach & Co.Ltd. vs Jardine Skinner & Co. AIR 1957 SC 357, Smt.Ganga Bai vs Vijay Kumar AIR 1974 SC 1126, BKN Pillai vs P Pillai AIR 2000 SC 614, held as under: "......But it is equally true that Courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be general rule particularly in cases where other side can be compensated with costs. -5- MA 88 2016 Technicalities of law should not be permitted to pleadings to avoid uncalled for multiplicity of litigation." Further, ld. AR relied on judgment of Delhi High Court in case of J.N.Sahni v. ITAT (123 Taxman 569). 4. On other hand, ld. DR strongly relied on order of Tribunal. 5. We have heard both parties and perused material on record. Admittedly, at time of disposal of appeal, POA was given to Mr. Yoo Young Jai to sign appeal memorandum, though assessee is non-resident of India, but he has not filed appeal papers. Tribunal found that appeal papers filed by assessee are not in accordance with law prescribed in sec.140(c) of Act. However, ld. AR filed requisite POA duly attested by officer, which is notary public officer of Seoul Central District Prosecutor s Office, 13, Mugyoro, Jung-gu, Seoul, Korea. In our opinion, defects were duly rectified by assessee. Therefore, considering facts and circumstances of case and in interest of justice, we are inclined to take lenient view. -6- MA 88 2016 Accordingly, we recall earlier order of Tribunal and direct Registry to fix case for fresh hearing on 19.10.2016. 6. In result, Misc. Application is allowed. Order pronounced on 21st of Sept., 2016 at Chennai. Sd - Sd - (Duvvuru RL Reddy) (Chandra Poojari) Judicial Member Accountant Member Chennai, Dated, 21st Sept., 2016. mpo* Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. GF. M/s. Daewon Kang Up Co. Ltd. v. Deputy Director of Income-tax, International Taxation-I, Chennai