SHRI MANOJ KUMAR JAIN, Jaipur V. INCOME TAX OFFICER, WARD, TONK

ITA 1263/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7515 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE -A, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1263/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 SH. MANOJ KUMAR JAIN, PROP. MAHAVEER & CO. NAZAR BAGH ROAD, TONK CUKE VS. THE INCOME TAX OFFICER WARD-TONK LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFEPJ4688Q VIHYKFKHZ@ APPELLA NT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI POONAM RAI (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/01/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 10/01/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-3, JAIPUR DATED 06.09.2018 FOR A.Y. 2014-15 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE LD. CIT (A) HAS GROSSLY ERRED IN PASSING EX PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD. APPELLANT PRAYS ORDER S O PASSED IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND DESER VES TO BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD. CIT(A) ERRED IN REJECTING THE APPEAL IN LIMINE FOR THE REASON THAT THE SAME WAS NOT FILED ONLINE (AFTER ISSUING SINGLE NOTICE). APPELLANT PRAYS THAT NO ADEQUATE OPPORTUNITY WAS PROVIDED TO FILE ONLINE APPEAL, IT IS THUS PRAYED THAT ORDER SO PASSED IS N OT IN ACCORDANCE WITH LAW AND DESERVES TO BE SET ASIDE. ITA NO. 1263/JP/2018 SH. MANOJ KUMAR JAIN, TONK VS. ITO, TONK 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE DISA LLOWANCE OF COMMISSION OF RS. 28,86,102/- MADE BY LD. AO ARBITR ARILY. APPELLANT PRAYS DISALLOWANCE SO CONFIRMED DESERVES TO BE DELE TED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDI TION OF RS. 1,20,000/- MADE BY LD. AO BY CLUBBING THE SALARY RE CEIVED BY HIS MEMBER IN HIS INCOME WHEN THE SAME WAS NEVER RECEIV ED BY THE HIM. APPELLANT PRAYS ADDITION SO MADE DESERVES TO B E DELETED. 2. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN REJECTING THE APPEAL IN LIMINE FOR THE RE ASON THAT THE ASSESSEE COULD NOT FILE THE APPEAL ONLINE IN ACCORDANCE WITH RULE 45 OF THE INCOME TAX RULE. IN THIS REGARD, LD. AR SUBMITTED THAT SOO N AFTER RECEIVING THE ASSESSMENT ORDER, THE ASSESSEE SUBMITTED A COPY OF THE SAME TO HIS COUNSEL TO FILE THE APPEAL BEFORE THE LD CIT(A), HO WEVER DUE TO SOME MISTAKE ON THE PART OF HIS COUNSEL, THE APPEAL WAS FILED IN PAPER FORM AND NOT ONLINE. IT WAS SUBMITTED THAT THE DEFAULT IS PU RELY OF TECHNICAL NATURE AND ASSESSEE MAY NOT BE PENALIZED FOR THE MISTAKE O F HIS COUNSEL. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF CO- ORDINATE BENCH IN CASE OF GURINDER SINGH DHILLON VS. ITO (ITA NO. 6595/DEL/16) WHEREIN THE APPEAL WAS FILED IN PAPER FORM AND THE ELECTRONIC FILING O F APPEAL GOT DELAYED, IN THE SAID FACTS, THE MATTER WAS RESTORED TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS AFT ER CONDONING THE DELAY. FURTHER, REFERENCE WAS DRAWN TO THE CO-ORDINATE BEN CH DECISION IN CASE OF AIFTP VS. ITO (ITA NO. 7134/MUM/2017) WHEREIN IT WAS HELD THAT SINCE THE APPEAL IN PAPER FORM WAS ALREADY WITH LD. CIT(A), I N THAT CASE THE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL SOLEL Y ON THE GROUND THAT ASSESSEE HAS NOT FILED ELECTRONIC BEFORE THE APPELL ATE COMMISSIONER. ITA NO. 1263/JP/2018 SH. MANOJ KUMAR JAIN, TONK VS. ITO, TONK 3 3. FURTHER, ON MERIT, IT WAS SUBMITTED BY THE LD AR THAT IN RESPECT OF ADDITION MADE BY THE AO U/S 40(A)(I) OF INCOME TAX ACT, THE MATTER IS SQUARELY COVERED BY THE DECISION OF CO-ORDINATE BEN CHES IN ASSESSEES OWN CASE IN AY 2011-12, 2012-13 AND 2013-14 AND IT WAS ACCORDINGLY SUBMITTED THAT THE TECHNICAL BREACH IN NON-FILING ELECTRONICA LLY MAY BE CONDONED AND THE MATTER MAY BE DECIDED ON MERIT. 4. PER CONTRA, THE LD. DR SUBMITTED THAT THE LD. CI T(A) HAS GIVEN SPECIFIC SHOW CAUSE TO THE ASSESSEE TO FILE THE APPEAL ELECT RONICALLY HOWEVER GIVEN THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE, THE LD. CIT(A) WAS LEFT WITH NO OPTION BUT TO DISMISS APPEAL IN LIMINE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT DISPUTED THAT THE AP PEAL HAS BEEN FILED MANUALLY IN TIME. HOWEVER, AT THE SAME TIME, THE AS SESSEE HAS FAILED TO COMPLY WITH THE SPECIFIC SHOW CAUSE WHEREIN HE WAS DIRECTED TO REMOVE THE DEFECT AND FILE APPEAL ELECTRONICALLY. WE NOTE THAT THE SAID COMPLIANCE WAS REQUIRED TO BE MADE BY 05.09.2018 WHICH THE ASSESSE E FAILED AND THEREAFTER, ON 06.09.2018, THE LD. CIT(A) HAS PASSE D THE ORDER DISMISSING THE APPEAL IN LIMINE. GIVEN THAT THE MANUAL APPEAL HAS BEEN FILED IN TIME AND THE APPEAL HAS NOT BEEN DECIDED ON MERIT, IN TH E INTEREST OF JUSTICE AND FAIR PLAY, WE HEREBY DIRECT THE ASSESSEE TO FILE TH E APPEAL ELECTRONICALLY BEFORE THE LD CIT(A) WITHIN 1 MONTH OF DATE OF RECE IVING OF THIS ORDER AND LD. CIT(A) SHALL THEREAFTER DECIDE THE MATTER AFRES H AFTER GRANTING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ITA NO. 1263/JP/2018 SH. MANOJ KUMAR JAIN, TONK VS. ITO, TONK 4 PRONOUNCED IN THE OPEN COURT ON 10/01/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10/01/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MANOJ KUMAR JAIN, TONK 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-TONK, TONK 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1263/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR