Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M.A. No. 814 of 2019
IN
CIVIL APPEAL NO. 2463 OF 2019
Principal Commissioner of
Income Tax (Central) 1 …Appellant
Versus
NRA Iron & Steel Pvt. Ltd. …Respondent
U D G M E N T
J
INDU MALHOTRA, J.
1. The present Application has been filed for Recall of the
Judgment dated 05.03.2019 passed by this Court in C.A.
No. 2463 of 2019, on the ground that the Applicant –
Company was not served with the Notice of the SLP at the
Signature Not Verified
Digitally signed by
NEELAM GULATI
Date: 2019.10.25
17:08:12 IST
Reason:
registered office of the Company, nor was a copy of the SLP
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served on the Applicant – Company. Consequentially, since
the Judgment was passed exparte , the Applicants prayed
for Recall of the Judgment and a hearing.
de novo
2. The Applicants submit that the Court Notices were sent to
the earlier registered office address of the Applicant –
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Company i.e. at 310, 3 Floor, BBlock, International Trade
Tower, Nehru Place, New Delhi. However, on 19.05.2014,
the Applicant – Company changed its registered office to
211, Somdutt Chambers II, 9, Bhikaji Cama Place, New
Delhi – 110066.
Thereafter, on 23.01.2019, the registered office was
again changed to 1205, Cabine No. 1, 89 Hemkunt
Chambers, Nehru Place, New Delhi.
3. The Applicants submit that they learnt of the Judgment
dated 05.03.2019 passed by this Court from a news clipping
published in the Economic Times on 07.03.2019.
Subsequently, the Application for recall was filed on
12.03.2019.
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4. The Applicant – Company submits that on an inspection of
the court record, they learnt that the Affidavit of dasti
service filed by the Revenue – Department on 19.12.2018,
showed an acknowledgment receipt by Mr. Sanjeeva
Narayan, the Chartered Accountant of the Applicant –
Company on 13.12.2018.
5. The Applicant – Company placed on record the Affidavit of
Mr. Sanjeev Narayan – Chartered Accountant, wherein he
has stated that he was the authorized representative of the
Respondent – Company before the Income Tax Authorities
but was not engaged before the High Court, or the Supreme
Court. The Chartered Accountant further submits that he
had received service on 13.12.2018 from one of the
Inspectors of the Income Tax Department, but he bona fide
believed that the documents were “some Income Tax Return
documents from Income Tax Department.”
The Chartered Accountant further submits that he was
suffering from an advanced stage of cataract, and had
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undergone a surgery in both the eyes on 04.01.2019 and
23.01.2019 respectively.
6. The Applicant – Company during oral arguments submitted
that Mr. Sanjeev Narayan – Chartered Accountant was
representing the Applicant – Company in all its cases, as
also the sister concerns including M/s. Tata Steel BSL Ltd.
(earlier known as Bhushan Steel Ltd.) before the Income Tax
Authorities, and continues to represent the Applicant –
Company even as on date.
7. This Court vide Order dated 19.08.2019, called for the
original record from the Income Tax Appellate Tribunal and
the Delhi High Court.
In the meanwhile, the Department was granted time to
file their objections.
8. The Department in the Counter Affidavit submitted that the
dasti Notice was duly served on Mr. Sanjeev Narayan at his
office address, in his capacity as the authorized
representative of the Applicant – Company, who was holding
a Power of Attorney of the Assessee – Company for the A.Y.
2009 – 10. The Power of Attorney appoints all four partners
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of the firm i.e. Mr. Mohan Lal, Advocate, Mr. Ashwani
Kumar, Chartered Accountant, Mr. Sanjeev Narayan,
Chartered Accountant and Mr. Surender Kumar, FCA as
their Counsel, and authorizes them to represent the
Applicant – Company at all stages of the proceedings. The
Power of Attorney executed by the Applicant – Company in
favour of Mr. Sanjeev Narayan was placed on record.
9. It was further submitted on behalf of the Revenue that even
though Mr. Sanjeev Narayan has stated that he underwent
the cataract surgery on 04.01.2019 and 23.01.2019, this
was much after the Notice had been served on 13.12.2018.
Hence, there was ample time for him to inform his clients of
the pendency of the proceedings.
10. It was further submitted that Mr. Sanjeev Narayan had
appeared before the Tax Authorities after the date of service
on 13.12.2018, and prior to his surgery, to represent the
Applicant – Company and its sister concerns on 14.12.2018,
21.12.2018, 28.12.2018 and 29.12.2018.
In these circumstances it was pointed out that there
was no merit in the contention raised by the Applicant –
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Company, and hence no ground was made out to Recall the
Judgment and Order dated 05.03.2019 passed by this
Court.
11. We have heard the learned Counsel for the parties and
perused the record.
This Court in C.A. No. 2463 of 2019, issued Notice to
the Assessee Applicant vide Order dated 12.11.2018. Since
dasti service was effected on 13.12.2018 on the Applicant –
Company, the matter was listed on 02.01.2019. However,
none appeared on behalf of the Applicant – Company. The
Court further adjourned the matter by two weeks, and
posted the case on 18.01.2019, when it was ordered that in
case the Applicant – Company chooses not to enter
appearance, the matter would be proceeded exparte . The
matter was, thereafter, listed on 23.01.2019, when the
following Order was passed:
“Notice was issued in the matter on
12.11.2018, Office report dated 22.12.2018
indicated that notice was served upon the sole
Respondent but none had entered appearance.
By order dated 02.01.2019, last opportunity
was given to the Respondent and it was
indicated that if the Respondent chose not to
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enter appearance, the matter would be
disposed of exparte. Even then none has
entered appearance. Having gone through the
matter, we give one more opportunity to the
Respondent to enter appearance and make
submissions with respect to the merits of the
matter. If the Respondent still chooses not to
appear, the matter shall definitely be decided
exparte.”
(emphasis supplied)
The Applicant – Company remained unrepresented
despite service on its authorised representative, on
31.01.2019, and on 05.02.2019, when the matter was taken
up for final hearing, and judgment was reserved.
12. During oral hearing on the Recall Application, a
submission was made by the Counsel for the Applicant –
Company that Mr. Sanjeev Narayan was not the “principal
officer” of the Applicant – Company, and hence service could
not have been effected upon him.
Section 2(35) defines “principal officer” as follows :
“2. In this Act, unless the context otherwise
requires,—
(35) "principal officer", used with reference to a
local authority or a company or any other
public body or any association of persons or
anybody of individuals, means—
(a) the secretary, treasurer, manager or agent
of the authority, company, association or
body, or
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(b) any person connected with the
management or administration of the local
authority, company, association or body upon
whom the Assessing Officer has served a
notice of his intention of treating him as the
principal officer thereof ;”
(emphasis supplied)
The term ‘agent’ would certainly include a power of
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attorney holder. In State of Rajasthan v. Basant Nehata this
Court held that :
“A grant of power of attorney is essentially
governed by Chapter X of the Contract Act. By
reason of a deed of power of attorney, an agent
is formally appointed to act for the principal in
one transaction or a series of transactions or to
manage the affairs of the principal generally
conferring necessary authority upon another
person. A deed of power of attorney is executed
by the principal in favour of the agent.”
(emphasis supplied)
Mr. Sanjeev Narayan admittedly being the Power of Attorney
holder of the Applicant – M/s. NRA Iron & Steel Pvt. Ltd. for
the A.Y. 2009 – 10 was the agent of the Assesse – Company,
and hence Notice could be served on him as the agent of the
Assessee – Company in this case.
13. The ground taken by Mr. Sanjeev Narayan that even though
Notice was served on 13.12.2018, he assumed that they
1 2005 (12) SCC 77.
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were “some Income Tax Return Documents” lacks
credibility. It is difficult to accept that the envelope
containing the dasti Notice from this Court was considered
to be “some Income Tax Return documents”. The deponent
does not at all disclose as to when the envelope containing
the dasti Notice was ever opened.
Furthermore, the ground urged that the Chartered
Accountant was suffering from an advanced stage of
cataract, and hence was constrained from informing his
clients is again not worthy of credence. The Notice was
dasti
admittedly served on him on 13.12.2018 at his office, which
was much prior to his surgery which he states took place on
04.01.2019. Mr. Narayan had sufficient time to inform the
Applicant – Company of the proceedings, prior to his
surgery.
Furthermore, Mr. Narayan appeared before the
Income Tax Authorities to represent the Applicant –
Company and its sister concerns on various dates prior to
his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and
29.12.2018.
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14. Keeping in view the abovementioned facts and
circumstances, this Court is satisfied that the Applicant –
Company was duly served through their authorized
representative, and were provided sufficient opportunities to
appear before this Court, and contest the matter. The
Applicant – Company chose to let the matter proceed
ex
parte . The grounds for Recall of the Judgment are devoid of
any merit whatsoever.
15. The Applicant – Company having failed to make out any
credible or cogent ground for Recall of the judgment dated
05.03.2019, the Application for Recall is dismissed with no
order as to costs.
…...........................J.
(UDAY UMESH LALIT)
…..……………………J.
(INDU MALHOTRA)
New Delhi,
October 25, 2019
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