M/S.UNIMED INDIA, Mumbai V. INCOME TAX OFFICER WARD 25(1)(5), Mumbai

ITA 1488/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0426 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Bogus purchase; Period of limitation
• Section: 143(3)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE HONBLE SHRI B. R. BASKARAN , AM & HONBLE SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 1488/MUM/2018 ( / ASSESSMENT YEAR: 2010 - 11 ) M/S UNIMED INDIA UNIMED HOUSE, 86, MAROL CO - OP INDL. ESTATE, M. V. ROAD, ANDHERI EAST, MUMBI - 400 059 / VS. ITO WARD - 25(1)(5 ) M UMBAI PIN - ./ ./ PAN NO. AA A FU5419R ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENTBY : SHRI RAJESH KUMAR YADAV , DR / DATE OF HEARING : 27.11 .2018 / DATE OF PRONOUNCEMENT : 27.11.2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 37, MUMBAI, DATED 18.12 .17 FOR A.Y. 20 10 - 11 . 2 I.T.A. NO. 1488 /MUM/201 8 M/S UNIMED INDIA 2. AT THE VERY OUTSET, IT IS NOTICED THAT NONE HAS APPEARED ON BEHALF OF ASSESSEE IN SPITE OF SEVERAL CALLS AND EVEN NO APPLICATION FOR ADJOURNMENT WAS MOVED. ON THE OTHER HAND L D. DR IS PRESENT IN THE COURT AND IS READY WITH ARGUMENTS. THEREFORE WE HAVE DECIDED TO PROCEED WITH THE HEARING OF THE CASE EX - PA RTE WITH THE ASSISTANCE OF THE L D. DR AND THE MATERIAL PLACED ON RECORD. 3. AS PER THE FACTS OF T HE PRESENT CASE, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PHARMACEUTICAL PRODUCTS AND WORKED AS MERCHANT EXPORTER. THE ORDER OF ASSESSMENT U/S 143(3) R.W.S . 147 OF THE I.T. ACT 1961 WAS PASSED BY THE AO ON 15.03.16 THEREBY MAKING ADDITIONS/DISALLOWANCES ON ACCOUNT OF BOGUS PURCHASES. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND THE LD. CIT(A) NOTICED THAT RULE 45 OF I.T . RULES 1962 MANDATING COMPULSORY E - FILING OF APPEALS BEFORE CIT(A) WITH EFFECT FROM 1 ST MAR CH 2016, THEREFORE LD. CIT(A) DISMISSED THE APPEAL IN LIMINI BY HOLDING THAT MANDATORY REQUIREMENT OF E - FILING OF APPEAL HAVE 3 I.T.A. NO. 1488 /MUM/201 8 M/S UNIMED INDIA NOT BEEN FULFILLED BY THE ASSESSEE. THE REFORE THE APPEAL FILED MANUALLY WAS NOT TREATED AS VALID APPEAL AND HENCE THE SAME WAS DISMISSED. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE US. 4 . THE SOLITARY GROUND RAISED BY THE ASSESSEE IS CHALLENG ING THE ORDER OF LD. CIT(A) IN NOT ALLOWING HEARING OF APPEAL FILED BY THE ASSESSEE MERELY ON THE BASIS OF ALLEGED DEFAULT OF NOT HAVING FILED ELECTRONICALLY. 5 . AFTER HEARING LD. DR AND AFTER PERUSAL OF RECORDS, WE NOTICE THAT THE APPEAL BEFORE LD. CIT( A) WAS FILED IN PAPER FORM AND UN DER THE RELEVANT PROVISIONS OF I.T. ACT 1 961 , BUT THE LD. CIT(A) HAD NOT ALLOWED HEARING OF THE APPEAL FILED BY THE ASSESSEE MERELY ON THE BASIS OF ALLEGED DEFAULT OF NOT HAVING FILED ELECTRONICALLY. WE ALSO NOTICED THAT ELECTRONICALLY FILING OF THE APPEALS WAS INT RODUCED FOR THE FIRST TIME VIDE RULE 45 OF I.T. RULES 1962 , MANDATING COMPULSORY E - FILING OF APPEALS BEFORE 4 I.T.A. NO. 1488 /MUM/201 8 M/S UNIMED INDIA APPELLATE COMMISSIONER WITH EFFECT FROM 1 ST MARCH 2016. WE NOTICED THAT IN THIS RESPECT, THE RE IS NO COR RESPONDING AMENDMENT IN ANY OF THE PROVISIONS OF THE SUBSTANTIVE LAW I.E I.T. ACT, 1961 . AS PER THE FACTS OF THE PRESENT CASE , THE ASSESSMENT IN TH E ABOVE CASE WAS COMPLETED U /S 143 (3) OF THE I.T. A CT 1961 . H OWEVER THE ASSESSEE HAS FILED APPEAL BEFORE LD . CIT (A) IN PAPER FORM AS PRESCRIBED UNDER THE PROVISIONS OF I.T. ACT 1961 WITHIN THE PRESCRIBED PERIOD OF LIMITATION . BUT THE SAME WAS DISMISSED BY LD. CIT(A) BY HOLDING THAT ASSESSEE HAD N OT FILED APPEAL THROUGH ELECTRONIC FORM, WHICH IS MANDATORY AS PER I.T. RULES 1962. AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION, WE FIND THAT H ON BLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB VS. SHYAMALA LMURARI AND OTHERS REPORTED IN AI R 1976 (SC) 1177 HAS CATEGORICALLY HELD THAT COURTS SHOULD NOT GO STRICTLY BY THE RULEBOOK TO DENY JUSTICE TO THE DESERVING LITIGANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. IT HAS BEEN REITERATED BY THE H ON BLE SUPREME COURT THAT ALL THE RULES OF PROCEDURE ARE HANDMA I D OF JUSTICE. THE LANGUAGE EMPLOYED BY 5 I.T.A. NO. 1488 /MUM/201 8 M/S UNIMED INDIA THE DRAF TSMAN OF PROCEDURAL LAW MAY BE LIBERAL OR STRINGENT, BUT THE FACT REMAINS THAT THE OBJECT OF PRESCRIBING PROCEDURE IS TO ADVANCE THE CAUSE OF JUSTICE. THE HO N BLE APEX C OURT HAS SAID IN AN ADVERSARIAL SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY OF PARTICIPATING IN THE PROCESS OF JUSTICE DISPENSATION. THE H ON BLE SUPREME COURT IN ITS JUDGEMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF R ANI KUSUM VRS. KANCHAN DEVI, REITERATED THAT, A PROCEDURAL LAW SHOULD NOT ORDINARILY BE CONSTRUED AS MANDATORY, AS IT IS ALWAYS SUBSERVIENT TO AND IS IN AID OF JUSTIC E. ANY INTERPRETATION, WHICH EL UDES OR FRUSTRATES THE RECIPIENT OF JUSTICE, IS NOT TO BE FOLLOWED. FROM THE FACTS OF THE PRESENT CASE , WE GATHERED THAT THE ASSESSEE HAD ALREADY FILED THE APPEAL IN PAPER FORM, HOWEVER ONLY THE E - FILING OF APPEAL HAS NOT BEEN DONE BY THE ASSESSEE AND ACCORDING TO US , THE SAME IS ONLY A TECHNICAL CONSIDERATION. IN THIS RESPECT , WE RELY UPON THE JUDGEMENT OF HONBLE SUPREME COURT, WHEREIN THE HONBLE SU PREME COURT HAS REITERATED THAT IF IN A GIVEN CIRCUMSTANCES, THE TECHNICAL 6 I.T.A. NO. 1488 /MUM/201 8 M/S UNIMED INDIA CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER , THE N IN THAT EVENTUALITY THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE P REFERREDAND CANNOT BE OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONSIDERATION S . APART FROM ABOVE WE HAVE ALSO NOTICED THAT THE COORDINATE BENCH OF HONBLE ITAT DELHI BENCH IN APPEAL ITA NO. 6595/DEL/16 IN CASE TITLE D GURINDER SINGH DHILLONVRS. ITO HAD RESTORED THE MATTER TO THE FILE OF LD. CIT(A) UNDER IDENTICAL CIRCUMSTANCES WITH A DIRECTION DO DECIDE APPEAL AFRESH ON MERIT, AFTER CONDONING THE DELAY, IF ANY. SINCE IN THE PRESENT CASE , WE FIND THAT APPEAL IN THE PA PER FORM WAS ALREADY WITH LD. CIT(A), THEREFORE IN THAT EVENTUALITY THE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL SOLELY ON THE GROUND THAT THE ASSESSEE HAS NOT FILED THE APPEAL ELECTRONICALLY BEFORE THE APPELLATE COMMISSIONER. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AS WELL AS THE CASE LAWS DISCUSSED AND RELIED UPON ABOVE, WE ARE O F THE CONSIDERED VIEW THAT THE CAUSE OF JUSTICE WOULD BE SERVED IN 7 I.T.A. NO. 1488 /MUM/201 8 M/S UNIMED INDIA CASE, WE SET ASIDE THE ORDERS OF LD. CIT(A) & ALLOW THE PRESENT APPEAL. WHILE SEEKING THE COMPLIAN CE, WE DIRECT THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. IN CASE, THE DIRECTIONS ARE FOLLOWED THEN IN THAT EVENTUALITY, THE DELAY IN E - FILING THE APPEAL SHALL STAND CONDONED. LD. CIT(A) IS FURTHER DIRECTED TO CONSIDER THE APPEAL FILED BY THE ASSESSEE ON MERITS BY PASSING A SPEAKING ORDER. RESULTANTLY, WE ALLOW THE APPEAL FILED BY THE ASSESSEE . 6 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH NOV , 2018 . SD/ - SD/ - ( B. R. BASKARAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 27 . 11 .201 8 SR.PS . DHANANJAY 8 I.T.A. NO. 1488 /MUM/201 8 M/S UNIMED INDIA / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI