Anand Kantilal Shah-Represented by (Kantilal Shivlal shah-Senior Citizen aged 77 Years), Ahmedabad V. The ITO, Ward 6(1)(4), , Ahmedabad

ITA 1950/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1707 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 30-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 148; 139

Judgement Text

SMC-ITA NO. 1950/AHD/2017 ANAND KANTILAL SHAH VS. ITO ASSESSMENT YEAR: 2012-13 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT ] ITA NO. 1950/AHD/2017 ASSESSMENT YEAR : 2012-13 ANAND KANTILAL SHAH ............APPE LLANT REPRESENTED BY (KANTILAL SHIVLAL SHAH)- FATHER AND LEGAL GUARDIAN, 3, TULSISHYAM APARTMENTS, 30, DHANLAXMI SOCIETY, OPP. BANK OF MAHARASHTRA, MANINAGAR, AHMEDABAD [PAN: ACNPS 4356 A] VS. INCOME TAX OFFICER .......................RESPONDENT WARD 6(1)(4), AHMEDABAD APPEARANCES BY: TUSHAR P HEMANI FOR THE APPELLANT JAYANT JHAVERI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 28.02.2019 DATE OF PRONOUNCING THE ORDER : 24.05.2019 O R D E R 1. THIS APPEAL CALLS INTO QUESTION CORRECTNESS OF L EARNED CIT(A)S ORDER DATED 29.06.2017 FOR THE ASSESSMENT YEAR 2012-13. GRIEVA NCES RAISED ARE AS FOLLOWS:- 1. THE APPELLATE ORDER PASSED BY THE LEARNED CIT(A ) IS BAD IN LAW ON THE GROUNDS THAT IT IS CONTRARY TO THE PROVISIONS OF TH E INCOME TAX, FACTS AND EVIDENCE ON RECORD AND IS THEREFORE PERVERSE. IT I S THEREFORE PRAYED THAT THE ORDER OF CIT(A) MAY PLEASE BE CANCELLED. 2. THE LEARNED CIT(A) GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE IN DISMISSING THE APPEAL FILED BY THE APPELLANT AND TR EATING THE SAME AS DEFECTIVE. 3. THE LEARNED CIT(A) GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE WITHOUT CONSIDERING THE PRINCIPLES OF NATURAL JUSTI CE AND WITHOUT PROVIDING THE OPPORTUNITY OF BEING HEARD IN THE MATTER TO THE APP ELLANT. 4. THE LEARNED CIT(A) GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE IN DISMISSING THE APPEAL OF THE APPELLANT SOLELY ON TH E GROUND THAT THE APPEAL WAS NOT FILED ELECTRONICALLY IN UTTER DISREGARD TO THE FACT THAT AS PER THE PROVISION OF SECTION 139 OF THE INCOME TAX ACT CORR ESPONDING I.T. RULES, HE SMC-ITA NO. 1950/AHD/2017 ANAND KANTILAL SHAH VS. ITO ASSESSMENT YEAR: 2012-13 PAGE 2 OF 3 HAS NOT UNDER THE OBLIGATION TO FILE RETURN OF INCO ME ELECTRONICALLY HE HAS OPTION TO FILE THE RETURN OF INCOME IN MANUALLY IN PHYSICAL FORM. 5. THE LEARNED CIT(A) GROSSLY ERRED IN LAW AND O N THE FACTS OF THE CASE IN DISMISSING THE APPELLANTS APPEAL IN UTTER DISREGAR D TO PROVISIONS CONTAINED IN CLAUSE (B) OF THE SUB-RULE (2) OF RULE 45 OF THE IN COME TAX RULES, 1962. 6. THE LEARNED CIT(A) GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE WITHOUT APPRECIATING THE NON-FEASIBILITY OF E-FILIN G THE APPEAL BECAUSE OF PECULIAR CIRCUMSTANCES OF THE CASE AND TECHNICAL RE ASONS EXPLAINED IN THE SUBMISSION FILED BEFORE THE CIT(A) IN THE COURSE OF APPELLATE PROCEEDINGS. 2. TO ADJUDICATE ON THIS APPEAL, IT IS SUFFICIENT T O TAKE NOTE OF THE FACT THAT THE APPEAL WAS DISMISSED SUMMARILY BY THE CIT(A) BY OBS ERVING AS FOLLOWS:- 4.2 IT IS OBSERVED THAT THE APPELLANT DID NOT FIL E RETURN OF INCOME AND ON THE BASIS OF CERTAIN INFORMATION NOTICE U/S 148 WAS ISS UED FOR ESCAPEMENT OF INCOME. SINCE THE APPELLANT IS NOT COVERED UNDER TH E EXEMPT CATEGORY OF E- FILING OF RETURN THEREFORE THE E-APPEAL IS COMPULSO RY IN THE CASE OF THE APPELLANT IN VIEW OF THE RULE 45 OF THE IT RULE. 4.3 DURING THE APPELLATE PROCEEDINGS TO ASCERTAIN THE FACTUAL STATUS, THE ITBA SYSTEM WAS CHECKED TO VERIFY WHETHER THE APPEL LANT HAS FILED THE APPEAL ELECTRONICALLY AS MANDATED UNDER RULE 45 OF IT RULE S. THE ITBA VERIFICATION SHOWED THAT THE APPEAL HAS NOT BEEN FILED ELECTRONI CALLY. 4.4 IN VIEW OF THE ABOVE FACTS, IT IS EVIDENT TH AT THE CASE OF THE APPELLANT IS COVERED BY THE PROVISION OF SECTION 249 R.W. RULE 4 5 OF IT RULES WHICH LAYS DOWN THAT EVERY APPEAL SHALL BE FILED IN THE PRESCR IBED FORM AND SHALL BE VERIFIED IN THE PRESCRIBED MANNER. IN THIS CASE TH E APPELLANT HAD FILED THE APPEAL MANUALLY AND WAS REQUIRED TO E-FILE IN ACCOR DANCE WITH RULE 45 OF IT RULES FOR THE EXTENDED PERIOD I.E. 15.06.2016. SIN CE, THE E-APPEAL HAS NOT BEEN FILED AS MANDATED UNDER RULE 45 OF IT RULES IT IS DEFECTIVE APPEAL WHICH IS NON-MAINTAINABLE AND IS BEING FILED. 3. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 5. WHEN THE APPEAL WAS CALLED OUT FOR HEARING, T WA S NOTICED THAT ADMITTEDLY THE APPEAL PERTAINS TO PREAMENDMENT PERIOD, I.E. UNAMEN DED RULE 12(3) AS IN FORCE PRIOR TO 01.04.2015, AND, THEREFORE, PAPER APPEAL WAS PER MISSIBLE. WHEN IT WAS POINTED TO THE LEARNED DEPARTMENTAL REPRESENTATIVE, HE SIMPLY RELIED UPON THE STAND OF THE CIT(A) AND DID NOT ELABORATE FURTHER. SMC-ITA NO. 1950/AHD/2017 ANAND KANTILAL SHAH VS. ITO ASSESSMENT YEAR: 2012-13 PAGE 3 OF 3 6. IN VIEW OF THE ABOVE DISCUSSIONS AND WITH THE CO NSENT OF THE PARTIES, THE APPEAL IS REMITTED TO THE FILE OF THE CIT(A) FOR AD JUDICATION ON MERITS. ORDERED, ACCORDINGLY. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 24 TH MAY, 2019. SD/- PRAMOD KUMAR (VICE PRES IDENT) AHMEDABAD, THE 24 TH DAY OF MAY, 2019 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....ORDER PREPARED AS PER 4 PAGES MANUSCRIPTS OF HONBLE VP-ATTACHED.......... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .... 24.05.2019..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .... 24.05.2019...... . 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 24.05.2019... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : ............ 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER: 8. DATE OF DESPATCH OF THE ORDER: ......