SHRI. GAUTAM CHANDRAKANT SHAH, MUMBAI V. ITO(IT)-4(2)(1), MUMBAI

ITA 1666/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6733 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 20-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Keywords: Opportunity of being heard; Period of limitation; Revised return; Set aside
• Section: 143(3); 13

Judgement Text

4 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I MANOJ KUMAR AGGARWAL , ACCOUNTANT MEMBER ITA NO. 1666 / MUM . /20 1 9 ( ASSESSMENT YEAR : 20 13 14 ) SHRI GAUTAM CHANDRAKANT SHAH 3, GROUND FLOOR, VINCENT VIEW DR. B.A. ROAD, DADAR (EAST) MUMBAI 400 014 PAN AAPJS3222Q . APPELLANT V/S INCOME TAX OFFICER (IT) CIRCLE 4(2)(1), MUMBAI . RESPONDENT ASSESSEE BY : MS. DINKLE HARIYA REVENUE BY : SHRI V. VINOD KUMAR DATE OF HEARING 03 .0 9 . 2020 DATE OF ORDER 11.09.2020 O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14 TH JANUARY 2019, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 58, MUMBAI, FOR THE ASSESSMENT YEAR 2013 14. 2. BRIEF FACTS ARE, THE ASSESSEE IS A NON RESIDENT INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE A SSESSEE ELECTRONICALLY FILED HIS RETURN OF INCOME ON 19 TH FEBRUARY 2014, DECLARING TOTAL INCOME AT ` 2 SHRI GAUTAM CHANDRAKANT SHAH 1,66,05,990. SUBSEQU ENTLY, HE FILED A REVISED RETURN OF INCOME ON 14 TH AUGUST 2014, DECLARING TOTAL INCOME AT ` 1,79,09,190. ASSESSMENT IN CASE OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 31 ST MARCH 2016, DETERMINING THE TOTAL INCOME AT ` 2 ,45,70,136. THE VARIATION IN THE DETERMINATION OF TOTAL INCOME WAS DUE TO COMPUTATION OF LONG TERM CAPITAL GAIN AT A HIGHER FIGURE. OF COURSE, THE ASSESSING OFFICER ALSO DISALLOWED ASSESSEES CLAIM OF TAXATION AT CONCESSIONAL RATE OF 15% AS PER INDIA UK TA X TREATY. AGAINST THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. IN AN EX PARTE ORDER PASSED ON 14 TH JANUARY 2019, LEARNED COMMISSIONER (APPEALS) DISMISSED ASSESSEES APPEAL IN LIMINE AS THE APPEAL WAS NOT FILED ELECTRONICALLY IN ACCORDANCE WITH RULE 45 R/W RULE 12 OF THE I.T. RULES, 1963. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, THE ASSESSEE HAS FILED TH E APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) WITHIN THE PRESCRIBED TIME LIMIT , THOUGH , MANUALLY AS PER EARLIER RULE 45 . HOWEVER, AFTER ITS AMENDMENT W.E.F. 1 ST MARCH 2016, THE APPEAL IS REQU IRED TO BE FILED ELECTRONICALLY. BUT, IT CANNOT BE IGNORED THAT THE ASSESSE E HAS FILED THE APPEAL 3 SHRI GAUTAM CHANDRAKANT SHAH MANUALLY WITHIN THE PRESCRIBED TIME. THEREFORE, THE NON FILING OF APPEAL ELECTRONICALLY IS A TECHNICAL LAPSE WHICH CAN BE RECTIFIED BY FILING THE APPEAL IN ELECTRONIC MODE. NON FILING OF APPEAL ELECTRONICALLY SHOULD NOT HA VE RESULTED IN DISMISSAL OF THE APPEAL IN LIMINE , THAT TOO , IN AN EX PARTE ORDER. NOTABLY, WHILE DECIDING IDENTICAL NATURE OF DISPUTE IN CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS V/S ITO, [2018] 166 DTR (TRIB.) 276 (MUM.), THE CO ORDINATE BENCH HAS HELD THAT WHEN THE APPEAL FILED BY THE ASSESSEE MANUALLY IS WITHIN THE PRESCRIBED PERIOD OF LIMITATION, THE FIRST APPELLATE AUTHORITY OUGHT NOT TO HAVE DISMISSED THE APPEAL SOLELY ON THE GROUND OF NON FILING OF APPEAL ELECTRONICALLY. FURTHER, THE BENCH PE RMITTED THE ASSESSEE TO FIL E THE APPEAL ELECTR ONICALLY WITHIN THE PERIOD OF TEN DAYS AND DIRECTED THE FIRST APPELLATE AUTHORITY TO DECIDE THE APPEAL ON MERIT. KEEPING IN VIEW THE AFORESAID DECISION OF THE CO ORDINATE BENCH, WE SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND PERMIT THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY WITHIN A PERIOD OF TWO WEEKS FROM THE DATE OF RECEIPT OF THIS ORDER AND UPON FILING OF SUCH APPEAL ELECTRONICALLY, LEARNED COMMISSIONER (APPEALS) SHOULD NOT RAISE T HE ISSUE OF ANY DELAY, BUT SHOULD DECIDE THE APPEAL ON MERITS AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 4 SHRI GAUTAM CHANDRAKANT SHAH 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED THROUGH NOTICE BOARD UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 ON 11.09.2020 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 11.09.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI