SHREE MUMBADEVI TEXTILES MILLS, Mumbai V. ITO WARD 25(1)(2), Mumbai

ITA 2496/MUM/2019

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9267 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARAT ASHOK
• Keywords: Bogus purchase
• Section: 142(1); 143(1); 143(2); 148

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI C. N. PRASAD, JM & SHRI S . RIFAUR RAHMAN, AM ./ I.T.A. NO . 2496/MUM/2019 ( / ASSESSMENT YEAR: 2011 - 12 ) M/S SHREE MUMBADEVI TEXTILES MILLS, 404, JOHRI MENSION, 259, KALBADEVI ROAD, MUMBAI - 400 002 / VS. ITO WARD 25(1)(2), BKC, MUMBAI - 400 051 ./ ./ PAN NO. AA AFS5118H ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENTBY : SHRI BHARAT ASHOK , DR / DATE OF HEARING : 2 6 .11 .20 20 / DATE OF PRONOUNCEMENT : 11.12.2020 / O R D E R PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMIS S IONER OF INCOME TAX (APPEALS) - 37 IN 2 I.T.A. NO. 2496 /MUM/201 9 M/S SHREE MUMBADEVI TEXTILES MILLS SHORT REFERRED AS LD. CIT(A) , MUMBAI, DATED 15.04.19 FOR A SSESSMENT YEAR (IN SHORT A Y ) 2011 - 12 . 2 . AT THE OUTSET, IT IS NOTICED THAT NO NE APPEARED ON BEHALF OF ASSESSEE IN SPITE OF CAL LS AND EVEN NO APPLICATION FOR ADJOURNMENT WAS MOVED. ON THE OTHER HAND, L D. DR IS PRESENT IN THE COURT AND IS READY WITH ARGUMENTS. THEREFORE , WE HAVE DECIDED TO PROCEED WITH THE HEARING OF THE CASE EX - PA RTE WITH THE ASSISTANCE OF THE L D. DR AND THE MATER IAL PLACED ON RECORD. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF CLOTHS, FILED ITS RETURN OF INCOME ON 20/09/2011 FOR THE ASSESSMENT YEAR 2011 - 12 DECLARING INCOME OF RS. NIL AFTER CLAIMING SET OFF OF BROUGHT FORWARD LOSSES OF RS. 12,961/ - . THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY, INFORMATION WAS RECEIVED FROM DGIT(INV) THAT ASSESSEE IS INVOLVED IN BOGUS PURCHASES. IN VIEW OF THE ABOVE, THE CASE WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE ACT AND THE CASE WAS TAKEN FOR SCRUTINY. ACCORDINGLY, NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED AND SERVED ON THE ASSESSEE. IN RESPONSE, AR OF THE ASSESSEE FILED THE RELEVANT 3 I.T.A. NO. 2496 /MUM/201 9 M/S SHREE MUMBADEVI TEXTILES MILLS INFORMATION AS CALLED FOR. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AS WELL AS VERIFYING THE RELEVANT DOCUMENTS, AO MADE THE DISALLOWANCES ON ACCOUNT OF BOGUS PURCHASES. 4 . AGGRIEVED BY THE ORDER OF THE LD. A.O., ASSESSEE FILED AN APPEAL MANUALLY, BEFORE THE LD. CIT(A). THE LD. CIT(A) OBSERVED THAT THE A SSESSEE IS REQUIRED TO FILE THE APPEAL ELECTRONICALLY WHICH IS MANDATORY AND SINCE THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME ELECTRONICALLY HE DISMISSED THE ASSESSEES APPEAL IN LIMINE. HOWEVER, HE TOOK NOTICE OF THE COORDINATE BENCH DECISION AND IN CASE OF ASSESSEE FILES THE APPEAL IN ELECTRONIC FORM WITH THE CONDONATION OF DELAY, HE WILL CONSIDER THE SAME AT APPROPRIATE TIME. 5 . AGGRIEVED BY THE ORDER OF THE LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE US. 6 . LD. DR SUBMITTED THAT ASSESSEE HAS NOT FILE D THE APPEAL BEFORE LD. CIT(A) ELECTRONICALLY, THEREFORE HE SUPPORTED THE ORDER OF LD. CIT(A). 4 I.T.A. NO. 2496 /MUM/201 9 M/S SHREE MUMBADEVI TEXTILES MILLS 7. CONSIDERED THE SUBMISSION OF LD. DR AND MATERIAL PLACED ON RECORD, WE FIND THAT THIS IS THE FIRST YEAR WHERE THE APPEAL WAS REQUIRED TO BE FILED BEFORE THE LD . CIT(A) ELECTRONICALLY, HOWEVER, THE ASSESSEE HAS FILED THE APPEAL WITHIN THE TIME BEFORE THE CIT(A) MANUALLY AND NOT ELECTRONICALLY. UNDER SIMILAR CIRCUMSTANCES, THE HONBLE JURISDICTIONAL HIGH COURT HAS CONSIDERED THE VERY SAME ISSUE IN W.P.NO. 21099/2 018 IN THE CASE OF M/S. RAYALASEEMA BULLION AND COMMTRADE PRIVATE LIMITED VS. CIT(A) - 3, HYDERABAD WHEREIN THE HONBLE HIGH COURT HAS DIRECTED THE ASSESSEE TO E - FILE ITS APPEAL WITHIN THE STIPULATED TIME PRESCRIBED IN THE ORDER AND THE CIT (A) WAS DIRECTED TO CONSIDER THE SAME AND ADJUDICATE THE APPEAL ON MERITS. THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS ALSO FOLLOWED BY THIS BENCH OF THE TRIBUNAL IN ITA NO. 862/HYD/2018 VIDE ORDER DATED 12/03/2019 FOR THE ASSESSMENT YEAR 2011 - 12. FOR THE SAK E OF READY REFERENCE, RELEVANT PORTION OF THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT IS EXTRACTED HEREIN BELOW FOR REFERENCE: - 5 I.T.A. NO. 2496 /MUM/201 9 M/S SHREE MUMBADEVI TEXTILES MILLS THE GRIEVANCE OF THE PETITIONER COMPANY IN THIS CASE IS WITH REGARD TO THE ACTION OF THE COMMISSIONER OF INCOME TAX (APP EALS) - 3, HYDERABAD, THE FIRST RESPONDENT HEREIN, IN PASSING ORDER DATED 12/03/2018 IN ITA NO.0152/ITO - 3(2)/HYD/CIT(A) - 3/2016 - 17, IN RELATION TO THE ASSESSMENT YEAR 2013 - 14, WHEREBY THE PETITIONER - COMPANYS APPEAL WAS DISMISSED IN LIMINI ON THE GROUND THAT IT HAD FAILED TO E - FILE THE SAID APPEAL AS MANDATORILY REQUIRED. HAVING RECEIVED INSTRUCTIONS IN THE MATTER, SRI VINOD KUMAR TADAKAMALLA, LEARNED SENIOR STANDING COUNSEL FOR THE REVENUE, WOULD INFORM THIS COURT THAT THE ASSESSMENT ORDER UNDER APPEAL BEFOR E THE FIRST RESPONDENT WAS DATED 29/03/2016 AND WAS RECEIVED BY THE PETITIONER COMPANY ON 04/04/2016. AGGRIEVED THEREBY, THE PETITIONER COMPANY FILED AN APPEAL MANUALLY ON 03/05/2016. WHILE SO, RULE 45 OF THE INCOME TAX RULES, 1962 (FOR BREVITY, THE RULES OF 1961) WAS AMENDED WITH EFFECT FROM 01/03/2016 REQUIRING FILING OF APPEALS IN E - FORMAT. HOWEVER, OWING TO THE GLITCHES IN IMPLEMENTATION OF THIS NEW PROCEDURE, THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, ISSUED CIRCULAR NO.20/2016 DATED 26/05/2016 SEEKING TO MITIGATE THE INCONVENIENCE CAUSED TO THE TAXPAYERS ON ACCOUNT OF THE NEW REQUIREMENT OF MANDATORY E - FILING OF APPEALS AND EXTENDED THE TIME LIMIT FOR FILING OF THE APPEALS WHICH WERE 6 I.T.A. NO. 2496 /MUM/201 9 M/S SHREE MUMBADEVI TEXTILES MILLS TO BE FILE D BY 15/05/2016 UP TO 15/06/2016. THE BOARD FURTHER DIRECTED THAT ALL E - APPEALS FILED WITHIN THE EXTENDED PERIOD SHOULD BE TREATED AS APPEALS FILED WITHIN TIME. IN THE CASE ON HAND, IT APPEARS THAT THE APPEAL FILED BY THE PETITIONER COMPANY WAS NOT RETUR NED ON THE GROUND THAT IT HAD NOT BEEN E - FILED IN TERMS OF THE AMENDED RULE 45 OF THE RULES OF 1962. HAVING KEPT THE APPEAL PENDING AFTER NUMBERING IT, THE APPELLATE AUTHORITY ULTIMATELY DISMISSED IT ON THE GROUND THAT IT WAS NOT E - FILED. WHEN THE CENTRA L BOARD OF DIRECT TAXES ITSELF SAW IT FIT TO EXTEND THE TIME FOR E - FILING OF APPEALS, HAD THE APPEAL FILED BY THE PETITIONER COMPANY BEEN RETURNED ON THE GROUND IT WAS NOT FILED AS PER THE DUE PROCEDURE, THE PETITIONER COMPANY COULD HAVE TAKEN STEPS TO FIL E IT WITHIN THE EXTENDED TIME. AS THE APPEAL WAS NOT RETURNED TO IT AND WAS NUMBERED, ON THE OTHER HAND, THE PETITIONER COMPANY WAS UNDER THE BELIEF THAT ITS APPEAL WOULD BE ENTERTAINED. THIS BEING THE FACT SITUATION, THE PETITIONER COMPANY CANNOT BE PEN ALIZED FOR NOT RESORTING TO E - FILING OF ITS APPEAL WITHIN THE EXTENDED TIME AS STIPULATED BY THE BOARD. IN SUCH CIRCUMSTANCES, THE WRIT PETITION IS ALLOWED TO THE EXTENT OF SETTING ASIDE THE ORDER DATED 12/03/2018 PASSED BY THE FIRST RESPONDENT IN ITA NO. 0152/ITO - 3(2)/HYD/CIT(A) - 3/2016 - 17. THE FIRST RESPONDENT SHALL RETURN THE SUBJECT APPEAL TO THE PETITIONER COMPANY WITHIN 7 I.T.A. NO. 2496 /MUM/201 9 M/S SHREE MUMBADEVI TEXTILES MILLS ONE WEEK FROM THE DATE OF RECEIPT OF A COPY OF THIS ORDER AND THEREUPON, THE PETITIONER COMPANY SHALL E - FILE ITS APPEAL IN ACCORDANC E WITH THE DUE PROCEDURE WITHIN TWO WEEKS THEREAFTER. IN THE EVENT THE PETITIONER COMPANY FILES ITS APPEAL THROUGH E - FORMAT AS DIRECTED SUPRA, THE APPELLATE AUTHORITY SHALL CONSIDER THE SAID APPEAL ON ITS OWN MERITS WITHOUT REFERENCE TO THE LIMITATION ASP ECT AS IT IS AN ADMITTED FACT THAT THE SAID APPEAL WAS ORIGINALLY FILED WITHIN TIME. THE PETITIONER COMPANY IS AT LIBERTY TO RAISE ADDITIONAL GROUNDS IN THE SAID APPEAL AT THE TIME OF PERSONAL HEARING. PENDING MISCELLANEOUS PETITIONS, IF ANY, SHALL STAND CLOSED IN THE LIGHT OF THIS FINAL ORDER. NO ORDER AS TO COSTS. 8. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JU RISDICTIONAL HIGH COURT (SUPRA) AND CONSIDERING THE FACT THAT LD. CIT(A) HAS CONSIDERED THE CO - ORDINATE BENCH DECISION AND WILLIN G TO ADJUDICATE ON MERIT ONCE THE ASSESSEE FILES THE APPEAL ELECTRONICALLY WITH CONDONATION OF DELAY. WE DIRECT LD. CIT(A) TO ACCEPT THE APPEAL, WHICH ASSESSEE WILL FILE ELECTRONICALLY AND ADJUDICATE THE ISSUE ON MERITS AFTER GIVING PROPER OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THERE IS NO NEED FOR SEPARATE 8 I.T.A. NO. 2496 /MUM/201 9 M/S SHREE MUMBADEVI TEXTILES MILLS APPLICATION FOR CONDONATION OF DELAY. AT THE SAME TIME, ASSESSEE IS ALSO DIRECTED TO FILE THE APPEAL ELECTRONICALLY WITHIN 15 DAYS OF RECEIPT OF THIS ORDER. 9. IN THE NET RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES AS TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 11.12 . 20 20 . SD/ - SD/ - ( C. N. PRASAD ) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 11.12. 2020 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI