Shri Sunil Bandacharya Joshi , Bangalore V. Assistant Commissioner of Income TAx Circle-3(3)(1), Bangalore

ITA 13/BANG/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5559 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 02-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD JDIT
• Assessee Lawyers: PREETI PATEL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH SMC-A, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNANT MEMBER ITA NO.13 (BANG) 2018 (ASSESSMENT YEAR : 2013 14) SHRI SUNIL BANDACHARYA JOSHI, A PPELLANT 11, F 105, LANGFORD TOWN, BANGALORE 560025. PAN. ACDPJ4475F VS THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 3 (3)(1), BANGALORE. RESPONDENT ASSESSEE BY : MS PREETI PATEL, ADVOCATE REVENUE BY : DR. SHANKAR PRASAD, JDIT (DR) DATE OF HEARING : 20-02-2018 DATE OF PRONOUNCEMENT : 23-02-2018 O R D E R PER A. K. GARODIA, A.M.: THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF CIT (A) 3 BANGALORE DATED 22.11.2017 FOR A. Y. 2013 14. 2. THE ASSESSEE HAS RAISED AS MANY AS 9 GROUNDS. AS PER GROUND NO. 2, THIS IS THE GRIEVANCE OF THE ASSESSEE THAT THE CIT (A) WAS IN ERROR IN DISMISSING THE APPEAL ON THE TECHNICAL GROUND OF NOT FILING THE AP PEAL ON LINE WHEN THE APPEAL WAS FILED IN PAPER FORM AND NO COMMUNICATION FOR RE FILLING WAS SENT TO THE ADDRESS MENTIONED IN FORM 35. 3. LEARNED AR OF THE ASSESSEE SUBMITTED THAT RULE 4 5 OF INCOME TAX RULES, WAS AMENDED W.E.F. 01.3.2016 PRESCRIBING FILING OF APPE AL BEFORE CIT (A) ELECTRONICALLY IF THE ASSESSEE IS REQUIRED TO FILE RETURN OF INCOME ELECTRONICALLY. ITA NO. 13(BANG)2018 2 SHE ALSO SUBMITTED THAT THE PRESENT APPEAL WAS FILE D BY THE ASSESSEE ON 28.04.2016 IN PAPER FORM AS NOTED BY CIT (A) ON PAG E 1 OF HIS ORDER. SHE SUBMITTED THAT SINCE IT WAS THE BEGINNING OF THE AM ENDED RULE 45, THE ASSESSEE WAS NOT AWARE ABOUT THIS CHANGE. REGARDING THIS OBSERVATION OF CIT (A) IN PARA 4.0 OF HIS ORDER THAT TWO LETTERS DATED 24.08.2016 AND 26.07.2017 WERE ISSUED TO THE ASSESSEE TO ADVISE THE ASSESSEE TO FILE THE APPEAL IN THE ELECTRONIC MODE, SHE SUBMITTED THAT NO SUCH LETTER WAS RECEIVED BY THE ASSESSEE. SHE SUBMITTED THAT IN THE INTEREST OF JUS TICE, AN OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE TO FILE THE SAID APPEAL BE FORE CIT (A) ELECTRONICALLY AND IF THAT IS GRANTED, SHE UNDERTAKES THAT THE ASS ESSEE WILL DO IT AND THE MATTER MAY BE RESTORED TO CIT (A) FOR A DECISION ON MERIT. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT (A). HE ALSO POINTED OUT THAT AS PER PARA 3.0 OF THE ORDER OF CIT (A), THE LETTER DATED 26.07.2017 WAS D ULY SERVED ON THE ASSESSEE ON 31.07.2017 AND THEREFORE, NO FURTHER OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THE LETTER DATED 26.07.2017 WAS DELIVERED TO THE ASSESSEE ON 31.07.2017 AS PER THE TRACKING REPORT REPRODUCED BY CIT (A) IN PARA 3.0 OF HIS ORDER. THE CLAIM OF THE ASSESSEE IS THIS THAT THIS LETTER WAS NOT RECEIVED BY THE ASSES SEE. BE THAT AS IT MAY. THIS IS ADMITTED FACT THAT THE APPEAL IN PAPER FORM WAS FIL ED BY THE ASSESSEE IN TIME. HENCE, NON FILING OF THE APPEAL ELECTRONICALLY CANN OT BE SAID TO BE INTENTIONAL. THE CHANGE IN RULE WAS NEW I.E. W.E.F. 01.03.2016 A ND THE APPEAL IN PAPER FORM WAS FILED ON 28.04.2016. CONSIDERING THESE FAC TS, I FEEL THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOULD BE PROVIDED ONE MOR E OPPORTUNITY TO FILE THE APPEAL BEFORE CIT (A) ELECTRONICALLY. HENCE, I REST ORE THE MATTER BACK TO CIT (A) FOR A FRESH DECISION WITH THE DIRECTION THAT THE AS SESSEE SHOULD FILE THE APPEAL BEFORE CIT (A) ELECTRONICALLY ON OR BEFORE 15.03.20 18 AND SUBMIT THE PROOF THEREOF BEFORE CIT (A) ON OR BEFORE 20.03.2018 AND THEREAFTER, THE CIT (A) SHOULD DECIDE THE APPEAL ON MERIT AFTER PROVIDING A DEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. I MAKE IT CLEAR THAT IF THE AS SESSEE FAILS TO FILE APPEAL BEFORE CIT (A) ELECTRONICALLY BY 15.03.2018 AND INT IMATE CIT (A) AS DIRECTED ABOVE, THE CIT (A) IS FREE TO DECIDE THE APPEAL AFR ESH IN THE MANNER HE DEEMS ITA NO. 13(BANG)2018 3 FIT. IN VIEW OF THIS DECISION, MATTER ON MERIT DOES NOT CALL FOR ANY ADJUDICATION AT THE PRESENT STAGE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (A.K. GARODIA) ACCOUNTANT MEMBER BANGALORE: D A T E D : 23.02.2018 /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.