M/S ASWATHI INDUSTIES LTD., Mumbai V. ITO 12 (1)(2), Mumbai

ITA 2000/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4856 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 04-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOMNATH WAJALE
• Keywords: Set aside
• Section: 201

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI SHRI SHAMIM YAHYA ( A M) I.T.A. NO. 2000 /MUM/ 201 9 (ASSESSMENT YEAR 2013 - 14 ) M/S. ASWATHI INDUSTRIES LTD. A - 001, APEKSHA ENCLAVE MAHAVIR NAGAR, DAHANUKAR WADI ROAD, KANDIVALI WEST MUMBAI - 400 067 . PAN :AACCA0541R V S . ITO - 12(1)(2) MUMBAI. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI SOMNATH WAJALE DATE OF HEARING 06 . 10 . 20 20 DATE OF PRONOUNCEMENT 06 .10 . 20 20 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER OF LEARNED C OMMISSIONER OF I NCOME T AX (A PPEALS ) [IN SHORT CIT(A)] DATED 31.1.2009 PERTAINS TO A.Y. 2013 - 14. 2. THE GROUNDS OF APPEAL READ AS UNDER : - 1. A) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 20 HAS ERRED IN LAW AND FAC TS ON RECORDS DISMISSING THE APPEAL ON TECHNICAL GROUND OF THE APPEAL HAVE NOT BEEN VERIFIED BY THE DIRECTOR, WHEREAS THE APPEAL HAS BEEN DIGITALLY SIGNED BY THE MANAGING DIRECTOR BUT THE E - FILING UTILITY HAS ALLOWED THE APPEAL HAVE BEEN FILED WITHOUT PROM PTING NON FILLING OF NAME OF THE DIRECTOR IN VERIFICATION COLUMN BUT THE PROFILE OF THE COMPANY IN THE E - FILING WEBSITE DO INCLUDE THE NAME OF MANAGING DIRECTOR WHICH THE SAME PERSON WHO SIGNED THE APPEAL. B) THE APPELLANT SUBMIT THAT IF AT ALL ANY TECHNI CAL DEFECT HAVE BEEN NOTICED IN FILING THE APPEAL BEFORE THE CIT (A), IT HAVE NOT BEEN PROVIDED ANY OPPORTUNITY TO RECTIFY THE DEFECT , APPARENT FROM RECORDS. 3. BRIEF FACTS OF THE CASE ARE THAT PURSUANT TO THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFF ICER, THE ASSESSEE WHICH IS A COMPANY FILED APPEAL BEFORE LEARNED CIT(A) . T HE LEARNED CIT(A) DISMISSED THE APPEAL ON TECHNICAL GROUND M/S. ASWATHI INDUSTRIES LTD. 2 THAT FROM NO. 35 HAS BEEN VERIFIED AND DIGITALLY SIGNED BY THE A SWATHI INDUSTRIES LTD. INSTEAD OF MANAGING DIRECTOR OR A NOTHER D IRECTOR AUTHORISED IN THIS REGA RD. IN THIS REGARD HE REFERRED TO SECTION 140 OF THE I.T. ACT AND RULE 45 OF THE I.T. RULES. 4. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERU SED THE RECORDS. I FIND THAT ELECTRONIC FILING OF APPEAL IS A NEW PHENO MENON. THOUGH SECTION 249 WHICH DEALS WITH FORM OF APPEALS DOES NOT SPECIFICALLY PROVIDES FOR ELECTRONIC FILING OF APPEAL , R ULE 45 OF INCOME TAX RULES PROVIDES FOR THE SAME FROM 2016. T HE SAID RULE 45 READ S AS UNDER : RULE 45. (1) AN APPEAL TO THE COMMISSIONER (APPEALS) SHALL BE MADE IN FORM NO. 35. (2) FORM NO. 35 SHALL BE FURNISHED IN THE FOLLOWING MANNER, NAMELY: (A) IN THE CASE OF A PERSON WHO IS REQUIRED TO FURNISH RETURN OF INC OME ELECTRONICALLY UNDER SUB - RULE (3) OF RULE 12, (I) BY FURNISHING THE FORM ELECTRONICALLY UNDER DIGITAL SIGNATURE, IF THE RETURN OF INCOME IS FURNISHED UNDER DIGITAL SIGNATURE; (II) BY FURNISHING THE FORM ELECTRONICALLY THROUGH ELECTRONIC VER IFICATION CODE IN A CASE NOT COVERED UNDER SUB - CLAUSE (I); (B) IN A CASE WHERE THE ASSESSEE HAS THE OPTION TO FURNISH THE RETURN OF INCOME IN PAPER FORM, BY FURNISHING THE FORM ELECTRONICALLY IN ACCORDANCE WITH CLAUSE (A) OF SUB - RULE(2) OR IN PAPER FOR M. (3) THE FORM OF APPEAL REFERRED TO IN SUB - RULE (1), SHALL BE VERIFIED BY THE PERSON WHO IS AUTHORISED TO VERIFY THE RETURN OF INCOME UNDER SECTION 140 OF THE ACT, AS APPLICABLE TO THE ASSESSEE. (4) ANY DOCUMENT ACCOMPANYING FORM NO. 35 SHALL BE FURNISH ED IN THE MANNER IN WHICH THE SAID FORM IS FURNISHED. (5) THE PRINCIPAL DIRECTOR GENERAL OF INCOME - TAX (SYSTEMS) OR THE DIRECTOR GENERAL OF INCOME - TAX (SYSTEMS), AS THE CASE MAY BE, SHALL (I) SPECIFY THE PROCEDURE FOR ELECTRONIC FILING OF FORM NO.35 AND DOCUMENTS; (II) SPECIFY THE DATA STRUCTURE, STANDARDS AND MANNER OF GENERATION OF ELECTRONIC VERIFICATION CODE, REFERRED TO IN SUB - RULE(2), FOR THE PURPOSE OF VERIFICATION OF THE PERSON FURNISHING THE SAID FORM; AND (III) BE RESPONSIBLE FOR FORMULAT ING AND IMPLEMENTING APPROPRIATE SECURITY, ARCHIVAL AND RETRIEVAL OF POLICIES IN RELATION TO THE SAID FORM SO FURNISHED . ] M/S. ASWATHI INDUSTRIES LTD. 3 I NOTE THAT S OME GLITCHES ARE INEVITABLE IN THE INITIAL PERIOD. THE ASSESSEE S GRIEVANCE IN THE GROUNDS OF APPEAL IS REASONABLE. THE LEARNED CIT(A) HAS ADOPTED A HYPER TECHNICAL A PPROACH , WHICH IS NOT PROPER IN A QUA SI JUDICIAL PROCEEDING. HE HAS NOT EVEN GIVEN AN OPPORTUNITY TO THE ASSESSEE TO RECTIFY THE MISTAKE. THERE IS NOTHING IN THE STATUTE WHICH PR OVIDES THAT THIS MISTAKE BY THE ASSESS EE IS FATAL OR NOT CURABLE. M OREOVER IT IS SETTLED LAW THAT WHEN HYPER TECHNICALITY IS PITTED AGAINST SUBSTANTIAL INTEREST OF JUSTICE, IT IS THE LATER THAT PREVAILS . 6. MOREOVER TO PUT THE MATTER IN PROPER PERSPECTIVE LEARNED CIT(A) IS NOT TECHNI CALLY PERFECT IN OBJECTING TO THE RETURN BEING DIGITALLY SIGNED AS IT IS. AS SUB - RULE 3 OF THE RULE 12 OF THE I.T. RULES SPECIFIES , IN THE CASE OF A COMPANY , THE MANNER OF FURNISHING RETURN OF INCOME AS ELECTRONICALLY UNDER DIGITAL SIGNATURE . THE ABOVE T ERM HAS NOT BEEN ELABORATED TO BE MANAGING DIRECTOR OR OTHER DIRECTOR IN THE SAID RULE 12 ITSELF . ALTHOUGH SECTION 140 IN THE TERMS OF VERIFICATION PROVIDES FOR THE SAME. SO IF THE ASSESSEE HAS DONE A MISTAKE THE SAME CAN BE ATTRIBUTED TO A REASONABLE CAU SE. 7. BE AS IT MAY AS I HAVE ALREADY NOTED ABOVE TECHNICALITIES SHOULD NOT BE AN IMPEDIMENT IN RENDERING SUBSTANTIAL JUSTICE BY A QUASI JUDICIAL AUTHORITY. A CCORDINGLY, I SET ASIDE THE ISSUE TO THE FILE OF LEARNED CIT(A). THE LEARNED CIT(A) SHALL FOL LOW THE OBSERVATION AS AFORESAID. 7 . IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED UNDER RULE 34(4) OF THE ITAT RULES ON 6.10.2020. SD/ - (SH A MIM YAHYA ) ACCOU NTANT MEMBER MUMBAI ; DATED : 06/ 1 0 / 20 20 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT M/S. ASWATHI INDUSTRIES LTD. 4 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY/ / ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI