Saraf Housing Development Pvt Ltd., CHENNAI V. DCIT Corporate Ward 6(1), CHENNAI

ITA 1128/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3265 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 16-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R CLEMENT RAMESH KUMAR
• Assessee Lawyers: SARAJ KUMAR PARIDA
• Keywords: Period of limitation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI , ! '!# $ , % & BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ! ./ ITA NO.1128/CHNY/2019 ' /ASSESSMENT YEAR: 2013-14 M/S. SARAF HOUSING DEVELOPMENT PVT. LTD., NO.80, (OLD NO.141), GREAMS ROAD, CHENNAI 600 006 VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE WARD-6(1) CHENNAI [PAN: AAECS 6183M] ( ( /APPELLANT) ( )*( /RESPONDENT) ( + , / APPELLANT BY : SHRI SARAJ KUMAR PARIDA, ADV. )*( + , /RESPONDENT BY : SHRI R. CLEMENT RAMESH KUMAR, ADDL. CIT - + .% /DATE OF HEARING : 05.08.2019 /0' + .% / DATE OF PRONOUNCEMENT : 31.10.2019 1 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -15, CHENNAI (HEREINAFTER CALLED AS CIT(A)) DATED 30.01.2019 F OR THE ASSESSMENT YEAR 2013-14. ITA NO.1128/CHNY/2019 (AY: 2013-14) :- 2 -: 2. THE APPELLANT IS A COMPANY INCORPORATED UNDER TH E PROVISIONS OF COMPANIES ACT, 1956. IT IS ENGAGED IN THE BUSINESS OF REAL ESTATE. THE RETURN OF INCOME FOR THE AY 2013-14 WAS FILED ON 30 .09.2013 DISCLOSING TOTAL INCOME OF RS. 1,57,91,330/-. AGAINST THE SAI D RETURN OF INCOME, THE ASSESSMENT AS COMPLETED BY THE DY. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-6(1), CHENNAI (HEREINAFTER CALLED AO) AT TOTAL INCOME OF 3,32,91,330/-. WHILE DOING SO, THE AO DISALLOWED THE CLAIM OF DEDUCTION U/S. 35(1)(II) OF THE INCOME TAX ACT, 196 1 (IN SHORT THE ACT) BEING THE CONTRIBUTION OF RS. 1,75,00,000/- MADE TO HERBLCURE HEALTH CARE BIO RESEARCH FOUNDATION, KOLKATA ON THE GROUND THAT IT IS A BOGUS DONATION BASED ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT, KOLKATA. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) MANU ALLY ON 12.04.2016. THE LD. CIT(A) HAD CALLED UPON THE ASSESSEE AS TO W HY THE APPEAL CANNOT BE TREATED AS NON-EST IN THE EYES OF LAW AS APPEAL WAS NOT FILED ELECTRONICALLY AS PRESCRIBED UNDER RULE 45 OF THE I NCOME TAX RULES, 1962, VIDE SHOW CAUSE NOTICE DATED 19.12.2018. DESP ITE THIS, THE APPEAL WAS NOT FILED IN ELECTRONIC FORM. ACCORDINGLY, THE LD. CIT(A) DISMISSED THE APPEAL IN LIMINE. ITA NO.1128/CHNY/2019 (AY: 2013-14) :- 3 -: 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A ), THE APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. THE LD. AUT HORISED REPRESENTATIVE SUBMITTED THE APPEAL WAS FILED MANUA LLY WITHIN THE PERIOD OF LIMITATION AND BASED ON THE SHOW CAUSE NOTICE DA TED 19.12.2018, ASSESSEE HAD FILED THE APPEAL ELECTRONICALLY ON 03. 01.2019. THE LD. CIT(A) WITHOUT ADJUDICATING THE APPEAL ON MERITS, D ISMISSED THE SAME ON LIMINE WITHOUT CONSIDERING THE MERITS OF THE ASSESS MENT. 5. ON THE OTHER HAND, THE LD. SR. DEPARTMENTAL REPRESENTATIVE PLACED RELIANCE ON THE ORDERS OF LOWER AUTHORITIES. 6. WE HEARD THE RIVAL CONTENTION AND PERUSED TH E MATERIAL ON RECORD. THE APPEAL WAS FILED MANUALLY WITHIN THE PERIOD OF LIMITATION PRESCRIBED UNDER THE STATUTE. NO DOUBT INCOME TAX RULES PRESCR IBES THAT THE APPEAL BEFORE THE LD.CIT(A) SHOULD BE FILED ELECTRONICALLY . IT IS MATTER OF RECORD THAT LD. CIT(A) HAD ACCEPTED THE APPEAL, THE DEFECT WAS POINTED OUT ONLY IN THE YEAR 2018 AND IMMEDIATELY, THEREAFTER ASSESS EE HAD FIELD APPEAL ELECTRONICALLY IN TERMS OF RULE 45. THE RIGHT OF AP PEAL IS AN SUBSTANTIVE RIGHT. THE FORM OF FILING OF APPEAL, PROCEDURE PRE SCRIBED FALLS WITHIN THE DOMAIN OF LAW OF PROCEDURE. THE LAW OF PROCEDURE H AS TO BE APPROACHED, UNDERSTOOD AND APPRECIATED AS A HELPMAT E IN THE COURSE OF THE PROCESS OF ADMINISTRATION OF JUSTICE. PROCEDUR AL PROVISIONS SHOULD BE ITA NO.1128/CHNY/2019 (AY: 2013-14) :- 4 -: SO CONSTRUED AS TO SUBSERVE THE COURSE OF JUSTICE AND NOT TO HINDER IT. IT IS NOW WELL-SETTLED THAT A PROCEDURAL PROVISION, OR DINARILY, SHOULD NOT BE CONSTRUED AS MANDATORY, IF THE DEFECT IN THE ACT DO NE IN PURSUANCE OF IT CAN BE CURED BY PERMITTING APPROPRIATE RECTIFICATIO N TO BE CARRIED OUT AT A SUBSEQUENT STAGE. PROCEDURAL LAWS ARE DEVISED AND E NACTED FOR THE PURPOSE OF ADVANCING JUSTICE. REFERENCE CAN BE MADE TO THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. HARDEODAS AGARWALLA TRUST, (1992) 198 ITR 511. IN THE PRESENT CASE, THOUGH THE APPEAL WAS FILED MANUALLY, LD. CIT(A) HAD TAKEN COGNIZANCE O F APPEAL MEMO, WHEN REQUIRED BY LD. CIT(A) TO FILE APPEAL ELECTRONICAL LY, IT WAS DULY COMPLIED WITH BY THE ASSESSEE. THEREFORE, APPEAL RELATES B ACK TO THE DATE OF FILING OF APPEAL MANUALLY. THUS, THERE WAS NO DELAY IN FI LING THE APPEAL BEFORE THE LD. CIT(A). THEREFORE, WE HOLD THAT LD. CIT(A ) OUGHT NOT HAVE DISMISSED THE APPEAL IN LIMINE WITHOUT CONSIDERING THE MERITS OF THE ASSESSMENTS. IN THE CIRCUMSTANCES, WE REMIT THE MA TTER BACK TO THE FILE OF THE LD. CIT(A) FOR DENOVO ADJUDICATION AFTER AFF ORDING DUE OPPORTUNITY OF HEARING TO THE APPELLANT IN ACCORDANCE WITH LAW. HE NCE, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURP OSES. ITA NO.1128/CHNY/2019 (AY: 2013-14) :- 5 -: 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2019 IN CHENNAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( '!# $ ) (INTURI RAMA RAO) % /ACCOUNTANT MEMBER /CHENNAI, 2! /DATED: 31 ST OCTOBER, 2019 . EDN, SR. P.S 1 + ).34 54'. /COPY TO: 1. ( /APPELLANT 2. )*( /RESPONDENT 3. - 6. ( )/CIT(A) 4. - 6. /CIT 5. 4 78 ). /DR 6. 89 : /GF