PRAKASH M.JAIN, MUMBAI V. INCOME TAX OFFICER 19(2)(5), MUMBAI

ITA 2265/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7860 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 11-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ABI RAMA KARTIKIYEN
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE S HRI G. MANJUNATHA (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 2265/MUM/2018 ASSESSMENT Y EAR: 2011 - 12 MR. PRAKASH M. JAIN, KULDEEP STEEL CENTRE, SHREE KANTI BHAVAN BLDG. NO. 13, 3 RD CROS S LANE, 6 TH KHETWADI BANK ROAD, MUMBAI - 400004 PAN: A ABPJ4763G VS. THE ITO 19(2)(5), MATRUMANDIR GRANT ROAD, MUMBAI - 400007 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI ABI RAMA KARTIKIYEN (D R ) DATE OF HEARING: 15/07 /201 9 DATE OF PRONOUNCEMENT: 24 / 0 7 /201 9 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28.12.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPE ALS) - 60 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2010 - 11 , WHEREBY THE LD. CIT(A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2 . THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUNDS : - GROUND NO. 1 IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED INCOME TAX OFFICER ERRED IN DISMISSING THE RECTIFICATION APP LICATION OF THE APPELLANT AND DISMISSING THE APPEAL IN LIMINE WITHOUT APPRECIATING. THE FACT THAT THE: 2 ITA NO. 2265 / MUM/2 018 ASSESSMENT YEAR: 2011 - 1 2 A. THAT THE ORIGINAL APPEAL MANUALLY FILED IN THE OFFICE OF THE CIT (APPEALS) 30 ON 18.04.2016 WAS IN LIMINE. B. THAT THE APPEAL HAS FILED ELECTRONICALLY ON 14 .07.2016 IS DELAYED BY ONE MONTH, WHICH WAS DUE TO THE REASONABLE CAUSE. THE HONBLE CIT (APPEAL) OUGHT TO HAVE CONDON THE DELAY IN FILING THE APPEAL. GROUND NO. 2 THE LEARNED C.I.T. (APPEAL) ERRED IN NOT FOLLOWING THE DECISION OF THE HONBLE DELHI ITAT IN THE CASE OF JAGBIR SINGH SHARMA VS. A.C.I.T. ITA NO. 809/DEL/2017 DECIDED ON 05.06.2017 WHICH WAS BROUGHT TO HIS NOTICE. WITHOUT PREJUDICE TO ABOVE GROUND OF APPEAL. GROUND NO. 3 THE LEARNED CIT APPEAL ERRED IN NOT ADJUDICATING THE RE - OPENING OF ASSESSMEN T 147 OF THE INCOME TAX ACT. GROUND NO. 4 ADDITION OF RS. 1983648/ - ON ACCOUNT OF SUSPICIOUS PURCHASES. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT APPEAL ERRED IN NOT ADJUDICATING THE ADDITION SUSPICIOUS PURCHASES OF RS. 1983648 WITHOUT GIVING AN OPPORTUNITY TO THE APPELLANT OF BEING HEARD. 3. IN THE PRESENT CASE, THE ASSESSEE FILED APPEAL AGAINST THE ASSESSMENT ORDER PASSED BY THE AO MANUALLY IN THE OFFICE OF CIT (A) - 30, MUMBAI ON 18.04.2016, WHICH WAS RECEIVED ON TRANSFER IN THE OFFICE OF CIT (A) - 16, MUMBAI ON 29.11.2017. ACCORDINGLY, VIDE LETTER DATED 18.12.2017 THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO EXPLAIN AS TO WHY MANUALLY FILED APPEAL SHOULD NOT BE TREATED AS INVALID IN THE LIGHT OF THE NOTIFICATION NO. SO 637 (E) DATE D MARCH 1, 2016 ISSUED BY THE CBDT MANDATING ELECTRONIC FILING OF APPEALS, BEFORE THE APPELLATE COMMISSIONER , W.E.F. 01.03.2016. THE ASSESSEE SUBMITTED THAT IT HAS ELECTRONICALLY FILED THE APPEAL ON 14.07.2016. THE LD. CIT (A) DISMISSED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND THAT THE PRESENT APPEAL FILED BY THE ASSESSEE DOES NOT MEET THE REQUIREMENT LAID DOWN IN THE AFORESAID NOTIFICATION. 3 ITA NO. 2265 / MUM/2 018 ASSESSMENT YEAR: 2011 - 1 2 4. THIS CASE WAS FIXED FOR HEARING ON 15.07.2019. HOWEVER, WHEN THE CASE WAS CALLED OUT FOR HEARING, NONE APP EARED ON BEHALF OF THE ASSESSEE. AS INFORMED BY THE REGISTRY , ON THE LAST DATE OF HEARING THE ASSESSEE WAS INFORMED ABOUT THE DATE OF HEARING. WE ACCORDINGLY DECIDED TO DISPOSE OF THE APPEAL ON THE BASIS OF THE MATERIAL ON RECORD AFTER HEARING THE LD. DEPA RTMENTAL REPRESENTATIVE (DR). 5. BEFORE US, THE LD. DR FAIRLY SUBMITTED THAT THE ASSESSEES CASE IS COVERED BY THE DECISION OF THE ITAT IN THE ASSESSEES OWN CASE FOR THE AY 2010 - 11. IN THE SAID CASE, THE ASSESSEE HAD RAISED THE IDENTICAL GROUNDS OF APPEA L AND THE ITAT AFTER HEARING BOTH THE SIDES RESTORE D THE APPEAL TO THE LD. CIT (A) AFTER CONDONING THE DELAY IN FILING THE APPEAL ELECTRONICALLY FOR DECIDING THE ISSUE AFRESH ON MERITS AFTER HEARING THE ASSESSEE . 6. WE HAVE CAREFULLY PERUSED THE MATER IAL ON RECORD. WE NOTICE THAT THE ASSESSEE HAD FILED THE APPEAL AGAINST THE SIMILAR ORDER PASSED BY THE LD. CIT (A) FOR THE AY 2010 - 11 AND THE COORDINATE BENCH RESTORED THE APPEAL TO THE LD. CIT (A) AFTER CONDONING THE DELAY IN FILING APPEAL ELECTRONICALLY IN TERMS OF NOTIFICATION AFORESAID, FOR DECIDING THE APPEAL AFRESH ON MERITS , AFTER HEARING THE ASSESSEE. THE OPERATIVE PART OF THE ORDER PASSED BY THE COORDINATE BENCH IN ASSESSEES CASE ITA NO. 2264/MUM/2018, AY 2010 - 11 READS AS UNDER: - 4. WE HAVE HE ARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE CIT (A) DID NOT DECIDE THE CASE ON MERITS. THE ASSESSEE FILED THE APPEAL MANUALLY BEFORE THE CIT (A) 30 ON 18.04.2016 WHICH WAS WELL - IN - TIME. HOW EVER, THE ASSESSEE HAS FILED THE APPEAL ELECTRONICALLY ON 14.07.2016 WHICH WAS DELAYED BY ONE MONTH. THE CIT (A) HAS DISMISSED THE APPEAL ON ACCOUNT OF FILING THE APPEAL DELAYED ELECTRONICALLY BY ONE MONTH I.E. ON 14.07.2016. THE CIT (A) DID NOT CONDONE TH E DELAY. ON APPRAISAL OF THE RECORD, WE NOTICED THAT IN FACT THE ASSESSEE HAS FILED THE APPEAL MANUALLY ON 18.04.2016 WHICH WAS WELL IN TIME. THE DELAY OF FILING THE APPEAL ELECTRONICALLY IS NOT SO MUCH 4 ITA NO. 2265 / MUM/2 018 ASSESSMENT YEAR: 2011 - 1 2 DELAY SPECIFICALLY IN THE SAID CIRCUMSTANCES WHEN THE CASE IS LIABLE TO BE DECIDED ON MERITS. THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS. 7,57,199/ - ON ACCOUNT SUSPICIOUS PURCHASE. THE MATTER OF CONTROVERSY IS REQUIRED TO BE ADJUDICATE ON MERITS, THEREFORE, IN THE INTEREST OF JUSTICE WE CONDONE THE DELA Y AND RESTORED THE MATTER BEFORE THE CIT (A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSES. 7. SINCE, THE COORDINATE BENCH HAS DEALT WITH THE IDENTICAL ISSUES IN ASSESSEES OWN CASE FOR THE AY 2010 - 11 (SUPRA) AND RESTORE D THE APPEAL TO THE LD. CIT (A) FOR DECIDING THE SAME ON MERITS AND SINCE THE ISSUES INVOLVED IN THE PRESENT CASE ARE IDENTICAL, WE RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH, CONDONE THE DELAY IN FILING APPEAL ELECTRONICALLY AND RESTORED THE FILE TO THE LD. CIT (A) FOR DECIDING THE APPEAL AFRESH ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT (A) AS AND WHEN CALLED AND NOT TO SEEK ADJOURNMENTS ON FRIVOLOUS GROUND S . IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2011 - 2012 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH J ULY , 2019 . SD/ - SD/ - ( G. MANJUNATHA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 24 / 07 / 201 9 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 5 ITA NO. 2265 / MUM/2 018 ASSESSMENT YEAR: 2011 - 1 2 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI