MACK STAR MARKETING PVT LTD, MUMBAI V. NFAC, DELHI

ITA 1710/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5461 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: D
• Next Hearing Date: 05-11-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Period of limitation; Time period of passing order; Set aside
• Section: 147; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAHUL CHAUDHARY (JUDICIAL MEMBER) ITA No. 1710/MUM/2023 Assessment Year: 2010-11 Mack Star Marketing Private Limited Dheeraj Apartment II P.P Dais Compound, Natwar Nagar Road No. 2 Jogeshwari (East), Mumbai- 400060 Vs. National Feceless Appeal Centre, Delhi PAN No. AADCM7564K Appellant Respondent Assessee by : Mr. Himanshu Sinha Revenue by : Smt. Sanyogita Nagpal, CIT. DR Date of Hearing : 06/11/2023 Date of pronouncement : 08/11/2023 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 22.03.2023 passed by the Ld. Commissioner of Income Tax (Appeals)-National Faceless Appeal Centre, Delhi (in short Ld. CIT(A)) for assessment year 2010-11, raised following grounds:- 1. The Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre erred in law and the facts and circumstances of the present case grossly erred in dismissing the appeal filed by the Appellant against order dated 31 March 2016 passed by the Deputy Commissioner of Income Tax Circle 10 (2) (2) Mumbai under Section 143 (3) read with Section 147 of the Income Tax Act1961. Limitation 2. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and circumstances of the present case to hold that the appeal filed by the Appellant was beyond the statutory time limit of 30 days prescribed under Section 249 (2) of the Income Tax Act, 1961. 3. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and circumstances of the case in not appreciating that Central Board of Direct Taxes (CBDT) vide 11/2016 (F No. 149/150/2015 increased the time limit for filing appeals to 15 June 2016. Principles of Natural Justice 4. The Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre circumstances of the case in not considering the submissions made by the Appellant before passing the order dated 22 March 2023 (Impugned Order). 5. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre err the case in passing the Impugned Order without providing an opportunity of personal hearing to the Appellant which goes against the principles of natural justice 6. The Appellant craves leave to add to and/or am delete and/or modify and /or alter the aforesaid grounds of appeal as and when the occasion demands 2. At the outset, before us the Ld. Counsel referred to ground no. 2 and submitted that Ld. CIT(A) has erroneously rejected the filed beyond the statutory limitation period of 30 days, whereas in view of the Central Board of direct taxes circular No. 20/2016 dated passed by the Deputy Commissioner of Income Tax Circle 10 (2) (2) Mumbai under Section 143 (3) read with Section 147 of the Income Tax Act1961. 2. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and circumstances of the present case to hold that the appeal filed by the Appellant was beyond the statutory time limit of 30 days der Section 249 (2) of the Income Tax Act, 1961. 3. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and circumstances of the case in not appreciating that Central Board of Direct Taxes (CBDT) vide Notification No. SO 637(E) [No. 11/2016 (F No. 149/150/2015-TPL)], dated 1 March 2016 increased the time limit for filing appeals to 15 June 2016. Principles of Natural Justice 4. The Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre erred in law and the facts and circumstances of the case in not considering the submissions made by the Appellant before passing the order dated 22 March 2023 (Impugned Order). 5. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre erred in law and the facts and circumstances of the case in passing the Impugned Order without providing an opportunity of personal hearing to the Appellant which goes against the principles of natural justice 6. The Appellant craves leave to add to and/or am delete and/or modify and /or alter the aforesaid grounds of appeal as and when the occasion demands At the outset, before us the Ld. Counsel for referred to ground no. 2 and submitted that Ld. CIT(A) has rejected the appeal of the assessee treating the same filed beyond the statutory limitation period of 30 days, whereas in view of the Central Board of direct taxes circular No. 20/2016 dated Mack Star Marketing Pvt Ltd 2 ITA No. 1710/Mum/2023 passed by the Deputy Commissioner of Income Tax Circle 10 (2) (2) Mumbai under Section 143 (3) read with Section 147 of the 2. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and circumstances of the present case to hold that the appeal filed by the Appellant was beyond the statutory time limit of 30 days der Section 249 (2) of the Income Tax Act, 1961. 3. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and circumstances of the case in not appreciating that Central Board Notification No. SO 637(E) [No. TPL)], dated 1 March 2016 increased the time limit for filing appeals to 15 June 2016. 4. The Commissioner of Income Tax (Appeals) / National erred in law and the facts and circumstances of the case in not considering the submissions made by the Appellant before passing the order dated 22 March 5. The Commissioner of Income Tax (Appeals)/National Faceless ed in law and the facts and circumstances of the case in passing the Impugned Order without providing an opportunity of personal hearing to the Appellant which goes 6. The Appellant craves leave to add to and/or amend and/or delete and/or modify and /or alter the aforesaid grounds of for the assessee referred to ground no. 2 and submitted that Ld. CIT(A) has the assessee treating the same as filed beyond the statutory limitation period of 30 days, whereas in view of the Central Board of direct taxes circular No. 20/2016 dated 26.05.2016, the period for electronic filling of the appeals was extended up to 15.06.2016. The Ld. Counsel further submitted that in the case of the assessee the assessment order was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on 02.05.2023 whereas the appeal has been filed electronically before the Ld. CIT(A) on 15.06.2016 within the extended period provided by the CBDT Circular (Supra). On the contrary the Ld. DR could not the Ld. Counsel for the lower authorities. 3. We have heard rival submission of the parties and perused the relevant material on record. The Ld. CIT(A) has rejected the appeal on the ground that appeal filed electronically was beyond statutory time limit of 30 days assessee and the assessee had not filed any request on condonation of such delay. The relevant finding of the Ld. CIT(A) is reproduced as under:- 5.1 I have gone through the Assessment Order and submissions of the appellant. demand as declared by the appellant is 2nd April 2016 and the appellant has filed appeal on 15th June 2016 which is beyond statutory time limit of 30 days and the appellant has also not filed any request 5.2 Since the appeal filing is time barred and in absence of any justified reason/ explanation the same is not maintainable ab initio. 4. Before us the Ld. Counsel CBDT Circular No.20/2016 said circular is reproduced as under: Subject: E-filing of appeals: Extension of time limit Rule 45 of the Income Tax Rules1962, mandates compulsory e filing of appeals before Commissioners of Income Tax (Appeal the period for electronic filling of the appeals was up to 15.06.2016. The Ld. Counsel further submitted that in the case of the assessee the assessment order was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on 02.05.2023 whereas the appeal has been filed ally before the Ld. CIT(A) on 15.06.2016 within the extended period provided by the CBDT Circular (Supra). On the contrary the Ld. DR could not controvert the facts raised the assessee, but, he relied on the order of t We have heard rival submission of the parties and perused the relevant material on record. The Ld. CIT(A) has rejected the appeal on the ground that appeal filed electronically was beyond statutory time limit of 30 days from service of assessment order on the and the assessee had not filed any request on condonation he relevant finding of the Ld. CIT(A) is reproduced 5.1 I have gone through the Assessment Order and submissions of the appellant. It is observed that the date of service of notice of demand as declared by the appellant is 2nd April 2016 and the appellant has filed appeal on 15th June 2016 which is beyond statutory time limit of 30 days and the appellant has also not filed any request for condonation of such delay. 5.2 Since the appeal filing is time barred and in absence of any justified reason/ explanation the same is not maintainable ab Before us the Ld. Counsel for the assessee has relied on the CBDT Circular No.20/2016 dated 26.05.2016. For s reproduced as under: filing of appeals: Extension of time limit - reg. Rule 45 of the Income Tax Rules1962, mandates compulsory e filing of appeals before Commissioners of Income Tax (Appeal Mack Star Marketing Pvt Ltd 3 ITA No. 1710/Mum/2023 the period for electronic filling of the appeals was up to 15.06.2016. The Ld. Counsel further submitted that in the case of the assessee the assessment order was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on 02.05.2023 whereas the appeal has been filed ally before the Ld. CIT(A) on 15.06.2016, which is well within the extended period provided by the CBDT Circular (Supra). the facts raised by he relied on the order of the We have heard rival submission of the parties and perused the relevant material on record. The Ld. CIT(A) has rejected the appeal on the ground that appeal filed electronically was beyond statutory ce of assessment order on the and the assessee had not filed any request on condonation he relevant finding of the Ld. CIT(A) is reproduced 5.1 I have gone through the Assessment Order and submissions It is observed that the date of service of notice of demand as declared by the appellant is 2nd April 2016 and the appellant has filed appeal on 15th June 2016 which is beyond statutory time limit of 30 days and the appellant has also not 5.2 Since the appeal filing is time barred and in absence of any justified reason/ explanation the same is not maintainable ab the assessee has relied on the ready reference reg. Rule 45 of the Income Tax Rules1962, mandates compulsory e- filing of appeals before Commissioners of Income Tax (Appeals) with effect from 01.03.2016 in respect of persons who are required to furnish return of income electronically. It has come to the notice of the Central Board of Direct Taxes (hereinafter referred to as the Board) that in some cases the taxpayers who were required to e of knowledge about e e-filing Also, the EVC functionality for verification of e was made operational from 12.05.2016 for individuals and from 19.05.2016 for other persons appeal and mapping of jurisdiction of Commissioners of Income Tax (Appeals) were also a cause of grievance in some cases 2. The matter has been examined by the Board underlying issues relating to e addressed and resolved, in order to mitigate any inconvenience caused to the taxpayers on account of the new requirement of mandatory e-filing appeals it has been decided to extend the time limit for filing of such e to be filed by 15.05.2016 can be filed up to 15.06.2016All e appeals filed within this extended period would be treated as appeals filed in time. 3. In view of the extended window for filing who could not successfully e appeals are required to file an e 45 before the extended period i.c would also be treated as appeals filed with 5. In the case, Ld. CIT(A) has mentioned that assessment order was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on or before 02.05.2016. The Ld. CIT(A) has also recorded that this appeal was filed before 15.06.2016. The para 2 of the CBDT Circular has extended the time limit for electronic filling of the appeal the appeals which were above circular, the appeal filed electroni within limitation period. 6. Before us the Ld. Counsel of the assessee also referred to the order of the Ld. CIT(A) dated 31.10.2017 wherein he dismiss with effect from 01.03.2016 in respect of persons who are required to furnish return of income electronically. It has come to the notice of the Central Board of Direct Taxes (hereinafter referred to as the Board) that in some cases the taxpayers who e required to e-file Form 35, were unable to do so due to lack of knowledge about e-filing procedure and/or technical issues in Also, the EVC functionality for verification of e was made operational from 12.05.2016 for individuals and from 19.05.2016 for other persons Word limit for filing grounds of appeal and mapping of jurisdiction of Commissioners of Income Tax (Appeals) were also a cause of grievance in some cases 2. The matter has been examined by the Board underlying issues relating to e-filing of appeals have since been addressed and resolved, in order to mitigate any inconvenience caused to the taxpayers on account of the new requirement of filing appeals it has been decided to extend the time limit for filing of such e-appeals. E-appeals which were due to be filed by 15.05.2016 can be filed up to 15.06.2016All e appeals filed within this extended period would be treated as appeals filed in time. 3. In view of the extended window for filing e-appeals taxpayers who could not successfully e-file their appeal and had filed paper appeals are required to file an e-appeal in accordance with Rule 45 before the extended period i.c 15.06.2016 Such e would also be treated as appeals filed within time. Ld. CIT(A) has mentioned that assessment order was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on or before 02.05.2016. The Ld. CIT(A) has also recorded that this appeal was filed before 15.06.2016. The para 2 of the CBDT Circular has extended the time limit for electronic filling of the appeal till 15.06.2016 were due to filed by 15.05.2016. In view of the the appeal filed electronically by the assessee within limitation period. Before us the Ld. Counsel of the assessee also referred to the order of the Ld. CIT(A) dated 31.10.2017 wherein he dismiss Mack Star Marketing Pvt Ltd 4 ITA No. 1710/Mum/2023 with effect from 01.03.2016 in respect of persons who are required to furnish return of income electronically. It has come to the notice of the Central Board of Direct Taxes (hereinafter referred to as the Board) that in some cases the taxpayers who file Form 35, were unable to do so due to lack filing procedure and/or technical issues in Also, the EVC functionality for verification of e-appeals was made operational from 12.05.2016 for individuals and from Word limit for filing grounds of appeal and mapping of jurisdiction of Commissioners of Income Tax (Appeals) were also a cause of grievance in some cases 2. The matter has been examined by the Board While the filing of appeals have since been addressed and resolved, in order to mitigate any inconvenience caused to the taxpayers on account of the new requirement of filing appeals it has been decided to extend the appeals which were due to be filed by 15.05.2016 can be filed up to 15.06.2016All e- appeals filed within this extended period would be treated as appeals taxpayers file their appeal and had filed paper appeal in accordance with Rule Such e-appeals Ld. CIT(A) has mentioned that assessment order was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on or before 02.05.2016. The Ld. CIT(A) has also recorded that this appeal was filed before him on 15.06.2016. The para 2 of the CBDT Circular has extended the time till 15.06.2016, in respect of due to filed by 15.05.2016. In view of the cally by the assessee is Before us the Ld. Counsel of the assessee also referred to the order of the Ld. CIT(A) dated 31.10.2017 wherein he dismissed the appeal filed physically electronic filling of the appeal before the Ld. CIT(A). 7. In view of above direct to admit the appeal of the assessee (supra) and thereafter Ground no. 2 appeal of the assessee is accordingly allowed. Other grounds raised are rendered academic and therefore required to adjudicate upon 8. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on Sd/ (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 08/11/2023 Shubham P. Lohar Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// appeal filed physically by the assessee in view of the notification for electronic filling of the appeal before the Ld. CIT(A). In view of above, we set aside the order of the Ld. CIT(A) and direct to admit the appeal of the assessee in view of CBDT Circular (supra) and thereafter adjudictae on merit in accordance with la Ground no. 2 appeal of the assessee is accordingly allowed. Other are rendered academic and therefore required to adjudicate upon at this stage. In the result, appeal of the assessee is allowed for statistical nounced in the open Court on 08/11 Sd/- Sd/ RAHUL CHAUDHARY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Mack Star Marketing Pvt Ltd 5 ITA No. 1710/Mum/2023 in view of the notification for set aside the order of the Ld. CIT(A) and in view of CBDT Circular on merit in accordance with law. Ground no. 2 appeal of the assessee is accordingly allowed. Other are rendered academic and therefore we not In the result, appeal of the assessee is allowed for statistical 11/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai