M/s. Todi Investors, Kolkata V. ACIT, Circle - 31, Kolkata , Kolkata

ITA 1540/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3064 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 18-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANOJ KATARUKA
• Section: 271(1)(c); 143(3); 27

Judgement Text

ITA NO. 1540/KOL/2018 A.Y. 2013 -2014 M/S. TODI INVESTORS, KOLKATA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1540/KOL/2018 ASSESSMENT YEAR: 2013-2014 M/S. TODI INVESTORS, .............................. ................................APPELLANT 225D, A.J.C. BOSE ROAD, 6 TH FLOOR, MINTO PARK, KOLKATA-700 020 [PAN: AABFT 5219 P] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ..................RESPONDENT CIRCLE-31, KOLKATA, 10B, MIDDLETON ROW STREET, KOLKATA-700 071 APPEARANCES BY: SHRI MANOJ KATARUKA, ADVOCATE, FOR THE APPELLANT SHRI SHANKAR HALDER, JCIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : MARCH 04, 2019 DATE OF PRONOUNCING THE ORDER : MARCH 04, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKATA DAT ED 30.05.2018 WHEREBY HE DISMISSED THE APPEAL FILED BY THE ASSESS EE IN LIMINI BY TREATING THE SAME AS NON-EST . 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN O RDER DATED 08.12.2015, THE TOTAL INCOME OF THE ASSESSEE WAS DE TERMINED BY THE ASSESSING OFFICER AT RS.43,37,080/- AS AGAINST THE RETURNED INCOME OF RS.24,40,080/- AFTER MAKING CERTAIN ADDITIONS TO TH E TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS UNDER SECTION 271(1)( C) WERE ALSO INITIATED BY THE ASSESSING OFFICER IN RESPECT OF THE ADDITION S MADE TO THE TOTAL ITA NO. 1540/KOL/2018 A.Y. 2013 -2014 M/S. TODI INVESTORS, KOLKATA 2 INCOME OF THE ASSESSEE AND SINCE THE EXPLANATION OF FERED BY THE ASSESSEE IN RESPONSE TO THE SHOW-CAUSE NOTICE ISSUED DURING THE COURSE OF THE SAID PROCEEDINGS WAS NOT FOUND ACCEPTABLE BY THE ASSESSI NG OFFICER, HE IMPOSED A PENALTY OF RS.5,86,176/- UNDER SECTION 27 1(1)(C) OF THE ACT BY TREATING THE ADDITIONS MADE TO THE TOTAL INCOME OF THE ASSESSEE AS ITS CONCEALED INCOME. THE PENALTY IMPOSED BY THE ASSESS ING OFFICER UNDER SECTION 271(1)(C) WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS) AND SINCE THE SAID APPE AL WAS FILED BY THE ASSESSEE MANUALLY INSTEAD OF THE MANDATORY REQUIREM ENT OF E-FILING THE SAME AS PER RULE 45 OF THE INCOME TAX RULES 1962 WI TH EFFECT FROM 1 ST MARCH, 2016 AS FURTHER EXTENDED TILL 15 TH JUNE, 2016, THE LD. CIT(APPEALS) TREATED THE APPEAL FILED BY THE ASSESSEE MANUALLY A S NON-EST AND DISMISSED THE SAME AT THE THRESHOLD. AGGRIEVED BY T HE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY C ONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE, A SIMILAR ISSUE AS INVOLV ED IN THE PRESENT CASE WAS ALSO INVOLVED IN THE CASE OF ALL INDIA FEDERATI ON OF TAX PRACTITIONERS VS.- ITO AND THE MUMBAI BENCH OF THIS TRIBUNAL DEC IDED THE SAME IN FAVOUR OF THE ASSESSEE VIDE ITS ORDER DATED 04.05.2 018 PASSED IN ITA NO. 7134/MUM/2017 BY OBSERVING AS UNDER:- 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIE S AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS OR DERS PASSED BY THE REVENUE AUTHORITIES. FROM THE RECORDS WE NOTICED TH AT ELECTRONICALLY FILING OF THE APPEALS WAS INTRODUCED FOR THE FIRST TIME VI DE RULE 45 OF I.T. RULES 1962, MANDATING COMPULSORY E-FILING OF APPEALS BEFO RE APPELLATE COMMISSIONER WITH EFFECT FROM 1STMARCH 2016. WE NOT ICED THAT IN THIS RESPECT, THERE IS NO CORRESPONDING 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 ASSESSMEN T IN THE ABOVE CASE WAS COMPLETED U/S 143(3) OF THE I.T. ACT 1961. HOWEVER THE ASSESSEE HAS FILED APPEAL BEFORE LD. CIT(A) IN PAPER FORM AS PRESCRIBE D UNDER THE PROVISIONS OF I.T. ACT 1961 WITHIN THE PRESCRIBED PERIOD OF LI MITATION. BUT THE SAME WAS DISMISSED BY LD. CIT(A) BY HOLDING THAT ASSESSEE HA D NOT FILED APPEAL THROUGH ELECTRONIC FORM, WHICH IS MANDATORY AS PER I.T. RULES 1962. ITA NO. 1540/KOL/2018 A.Y. 2013 -2014 M/S. TODI INVESTORS, KOLKATA 3 AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION , WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF STATE OF PUNJ AB VS.SHYAMALALMURARI AND OTHERS REPORTED IN AIR 1976 (SC) 1177 HAS CATE GORICALLY HELD THAT COURTS SHOULD NOT GO STRICTLY BY THE RULEBOOK TO DE NY JUSTICE TO THE DESERVING LITIGANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE . IT HAS BEEN REITERATED BY THE HONBLE SUPREME COURT THAT ALL THE RULES OF PRO CEDURE ARE HANDMAID OF JUSTICE. THE LANGUAGE EMPLOYED BY THE DRAFTSMAN 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 HONBLE APEX COURT HAS SAID IN AN ADVERSARIAL SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY OF PART ICIPATING IN THE PROCESS OF JUSTICE DISPENSATION. THE HONBLE SUPREME COURT IN ITS JUDGEMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF RANI KUSUMVRS. 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 JUSTICE. ANY INTERPRETATION, WHICH ELUDES OR FRUSTRATES THE RECI PIENT OF JUSTICE, IS NOT TO BE FOLLOWED. FROM THE FACTS OF THE PRESENT CASE, WE GATHERED THA T 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 ACCORD ING TO US, THE SAME IS ONLY A TECHNICAL CONSIDERATION. IN THIS RESPECT, WE RELY UPON THE JUDGEMENT OF HONBLE SUPREME COURT, WHEREIN THE HONBLE SUPRE ME COURT HAS REITERATED THAT IF IN A GIVEN CIRCUMSTANCES, THE TE CHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THEN IN THAT EVENTUALITY THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PRE FERRED AND CANNOT BE OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONSIDE RATIONS. APART FROM ABOVE WE HAVE ALSO NOTICED THAT THE COOR DINATE BENCH OF HONBLE ITAT DELHI BENCH IN APPEAL ITA NO. 6595/ DEL/16 IN CASE TITLED GURINDER SINGH DHILLON VRS. ITO HAD RESTORED THE MA TTER TO THE FILE OF LD. CIT(A) UNDER IDENTICAL CIRCUMSTANCES WITH A DIRECTI ON DO DECIDE APPEAL AFRESH ON MERIT, AFTER CONDONING THE DELAY, IF ANY. SINCE IN THE PRESENT CASE, WE FIND THAT APPEAL IN T HE PAPER FORM WAS ALREADY WITH LD. CIT(A), THEREFORE IN THAT EVENTUAL ITY THE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL SOLELY ON THE GROU ND THAT THE ASSESSEE HAS NOT FILED THE APPEAL ELECTRONICALLY BEFORE THE APPE LLATE COMMISSIONER. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AS WELL AS THE CASE LAWS DISCUSSED AND RELIED UPON ABOVE, WE ARE OF THE CONS IDERED VIEW THAT THE CAUSE OF JUSTICE WOULD BE SERVED IN CASE, WE SET AS IDE THE ORDERS OF LD. CIT(A) & ALLOW THE PRESENT APPEAL. WHILE SEEKING TH E COMPLIANCE, WE DIRECT THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY WITH IN 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. ITA NO. 1540/KOL/2018 A.Y. 2013 -2014 M/S. TODI INVESTORS, KOLKATA 4 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS ALSO FILED AN APPEA L BEFORE THE LD. CIT(APPEALS) ON 14.07.2018 AGAINST THE ORDER OF ASS ESSING OFFICER IMPOSING THE PENALTY UNDER SECTION 271(1)(C) THROUG H E-FILING. KEEPING IN VIEW THIS FACTUAL ASPECT AND RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF AL L INDIA FEDERATION OF TAX PRACTITIONERS (SUPRA), WE DIRECT THE LD. CIT(AP PEALS) TO HEAR AND DISPOSE OF THE SAID APPEAL FILED BY THE ASSESSEE TH ROUGH E-FILING ON MERIT AFTER CONDONING THE DELAY IN FILING THE SAME. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 4, 2019 . SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 4 TH DAY OF MARCH, 2019 COPIES TO : (1) M/S. TODI INVESTORS, 225D, A.J.C. BOSE ROAD, 6 TH FLOOR, MINTO PARK, KOLKATA-700 020 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-31, KOLKATA, 10B, MIDDLETON ROW STREET, KOLKATA-700 071 (3) COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKA TA, (4) COMMISSIONER OF INCOME TAX , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.