SHRI MAYANK KISHOR TEJURA, MUMBAI V. INCOME TAX OFFICER 19(2)(3), MUMBAI

ITA 1403/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9492 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 07-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: KETAN L VAJANI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR, HON'BLE ACCOUNTANT MEMBER ITA NO. 1402 /MUM/201 8 (A.Y: 2013 - 14) SHRI RA K ESH KISHOR TEJURA 365 - 367, TEJURA CHAMBERS V .P. ROAD, GRANT ROAD , MUMBAI 400 004 PAN: AAAPT 6280 D V. INCOME TAX OFFICER 19(3)(1) MATRU MANDIR, INCOME - TAX OFFICE, 2 ND FLOOR, GRANT ROAD (W) , MUMBAI 400 007 (APPELLANT) (RESPONDENT) ITA NO. 1403 /MUM/201 8 (A.Y: 2013 - 14) SHRI MAYANK KISHOR TEJURA 365 - 367, TEJURA CHAMBERS V.P. ROAD, GRANT ROAD , MUMBAI 400 004 PAN: AAAPT 6282 B V. INCOME TAX OFFICER 19(3)(1) MATRU MANDIR, INCOME - TAX OFFICE, 2 ND FLOOR, GRANT ROAD (W) MUMBAI 400 007 (APPELLANT) (RESPONDENT) ASSESSEE BY : KETAN L. VAJANI DEPARTMENT BY : SHRI D.G. PANSARI DATE OF HEARING : 12.06.2019 DATE OF PRONOUNCEMENT : 12 .06 .2019 2 ITA NO. 1402 & 1403 /MUM/2018 (A.Y: 2013 - 14) SHRI RAK ESH KISHOR TEJURA & SHRI MAYANK KISHOR TEJURA O R D E R PER C. N. PRASAD (JM) 1. THESE TWO APPEALS ARE FILED BY DIFFERENT ASSESSEE S FOR THE A.Y. 2013 - 14 AGAINST THE ORDER OF THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) 60 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 28.12.2017 . 2. A SSESSEE S HAS RAISED THE FOLLOWING COMMON GROUNDS IN BOTH THE APPEALS : - THE APPELLANT/ASSES S EE RESPECTFULLY STATES & SUBMITS AS UNDER: 1) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) (THE LD.CIT (A)) ERRED IN DISMISSING THE APPELLANT'S APPEAL SOLELY ON THE GROUND THAT THE APPEAL WAS FILED MANUALLY AND NOT FILED ELECTRONICALLY. 2) THE LD. CIT(A) MISDIRECTED HIMSELF IN NOT APPRECIATING THAT FAILURE TO FILE THE APPEAL ONLINE (VIZ. ELECTRONICALLY) IS, AT BEST, A MERE PROCEDURAL DEFECT, MORE SO WHEN THE PROVISIONS FOR E - FILING OF APPEALS BEFORE CIT(A) WERE INTRODUCED FOR THE FIRST TIME WITH EFFECT FROM 01.03.2016. 3) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THAT ON REMOVAL OF DEFECT(S), THE APPEAL OUGHT TO BE DISPOSED OFF ON MERITS AND NO NEW A PPEAL IS REQUIRED TO BE FILED. 4) THE LD. CO MMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN NOT ADJUDICATING THE APPEAL ON MERITS EVEN THOUGH, SUBSEQUENTLY, THE DEFECT WAS REMOVED VIZ. APPEAL WAS FILED ELECTRONICALLY. 5) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR MODIFY ANY OF THE AFORESAID GROUNDS OF APPEAL 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT APPEAL S OF THE ASSESSEE S WERE REJECTED FOR THE REASON THAT ASSESSEE HAS NOT FILED APPEAL IN THE ELECTRONIC FORM AND WAS FILED MANUALLY. LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT IN THE COURSE OF PROCEEDINGS BEFORE THE LD.CIT(A) THE ASSESSEE HAD IN FACT FILED APPEAL IN ELECTRONIC FORM ON 26.12.2017 IN 3 ITA NO. 1402 & 1403 /MUM/2018 (A.Y: 2013 - 14) SHRI RAK ESH KISHOR TEJURA & SHRI MAYANK KISHOR TEJURA THE CASE OF RAKESH KISHOR TEJURA AND ON 27.12.2017 IN THE CASE OF MAYANK KISHOR TEJURA AND THIS WAS ALSO BROUGHT TO THE NOTICE OF THE LD.CIT(A). LD. COUNSEL FOR THE ASSESSEE FURTHER REFERRING TO THE DECISION OF THE COORDINATE BENCH IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS V. ITO IN ITA.NO. 7134/MUM/2017 DATED 04.05.2018 SUBMITS THAT ON IDENTICAL SITUATION THE TRIBUNAL RESTORED THE APPEAL TO THE FILE OF THE LD.CIT(A) WITH A DIRECTION TO THE ASSESSEE TO FILE APPEAL IN ELECTRO NIC FORM WITHIN TEN DAYS OF RECEIPT OF THE ORDER. LD. COUNSEL FOR THE ASSESSEE T HEREFORE SUBMITS THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE LD.CIT(A) FOLLOWING THE ORDER OF THE TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT SINCE THE ASSESSEE HAS ALREADY FILED APPEAL IN ELECTRONIC FORM BEFORE THE LD.CIT(A) A DIRECTION MAY BE GIVEN TO THE LD.CIT(A) TO CONSIDER THE SAID APPEALS AS FILED IN COMPLIANC E TO THE ORDER OF THIS TRIBUNAL. 4. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IDENTICAL ISSUE HAD COME UP BEFORE THE COORDINATE BENCH IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS V. ITO (SUPRA) AND THE TRIBUNAL HELD THAT NON - FILING OF APPEAL IN THE ELECTRONIC FORM IS ONLY A PROCEDURAL DEFECT WHICH CAN BE CURED AND TH E TRIBUNAL 4 ITA NO. 1402 & 1403 /MUM/2018 (A.Y: 2013 - 14) SHRI RAK ESH KISHOR TEJURA & SHRI MAYANK KISHOR TEJURA RESTORED MATTER BACK TO THE FILE OF THE LD.CIT(A) FOR DISPOSAL OF APPEAL ON MERITS AND THE ASSESSEE WAS DIRECTED TO FILE THE APPEAL IN ELECTRONIC F ORM WITHIN TEN DAYS ON RECEIPT OF ORDER. FOLLOWING THE ABOVE ORDER, WE RESTORE THESE TWO APPEALS TO THE FILE OF THE LD.CIT(A) FOR DISPOSAL ON MERITS BY TAKING ON THE APPEALS ALREADY FILED BY THE ASSESSEE IN ELECTRONIC FORM ON RECORD BY THE LD.CIT(A) . NEE DLESS TO SAY THAT THE LD.CIT(A) SHALL GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 12 TH JUNE , 2019 SD/ - SD/ - (RAJESH KUMAR) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 12/ 0 6 / 2019 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM