Intelenet Global Services P.Ltd, Mumbai V. DCIT, circle-25(1), New Delhi

ITA 2507/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3289 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 10-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: C NEW DELHI BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.2507/DEL/2018 ASSESSMENT YEAR: 2009-10 M/S. INTELENET GLOBAL SERVICES PVT. LTD. (PRIOR TO MERGER KNOWN AS TECHNOVATE E-SOLUTIONS PVT. LTD.), INTELENET TOWERS, PLOT CST NO.1406, A-28, MINDSPACE, MADAD (W), MUMBAI VS. DCIT, CIRCLE-25(1), NEW DELHI PAN : AACCT4147K (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER DATED 29/01/2018 PASSED BY THE LEARNED COMMIS SIONER OF INCOME-TAX (APPEALS)-9, NEW DELHI [IN SHORT THE LD . CIT(A)] FOR ASSESSMENT YEAR 2009-10 RAISING FOLLOWING GROUNDS: APPELLANT BY SH. YISHU GOEL, AR SH. ANKIT SAHAY, ADV. RESPONDENT BY SH. SUNITA SINGH, CIT(DR) DATE OF HEARING 28.09.2021 DATE OF PRONOUNCEMENT 21.10.2021 2 ITA NO.2507/DEL/2018 1 : 0 RE.: DISMISSING THE APPEAL FILED IN LIMINE: 1 : 1 THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN DISMISSING THE APPEAL IN LIMINE, SINCE THE APPELLANT HAS FAILE D TO FILE THE APPEAL ELECTRONICALLY WITHIN THE PRESCRIBED PERIOD. 1 : 2 THE APPELLANT SUBMITS THAT CONSIDERING THE F ACTS AND CIRCUMSTANCES OF THE CASE THE COMMISSIONER OF INCOM E-TAX (APPEALS), OUGHT NOT TO HAVE DISMISSED THE APPEAL, SINCE THE PHYSICAL COPY OF THE APPEAL WAS FILED WITHIN THE PR ESCRIBED TIME LIMIT. WITHOUT PREJUDICE TO THE AFORESAID: 2 : 0 RE.: ORDER PASSED U/S. 271(1)(C) OF THE INCOME -TAX ACT, 1961: 2 : 1 THE ASSESSING OFFICER HAS ERRED IN PASSING T HE ORDER DATED 31 MARCH 2016 U/S. 271(L)(C) OF THE INCOME-TAX ACT, 19 61. 2 : 2 THE APPELLANT SUBMITS THAT ASSESSING OFFICER FAILED TO APPRECIATE THAT THE PENALTY ORDER WAS BEYOND JURISDICTION AND / OR OTHERWISE NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AN D WAS HENCE BAD IN LAW AND OF NO LEGAL EFFECT. 2 : 3 THE APPELLANT SUBMITS THAT THE IMPUGNED ORDER PASSED U/S. 271(L)(C) OF THE INCOME- TAX ACT, 1961 BE HELD AS N ULL AND VOID AND BE STRUCK DOWN. 3 : 0 GENERAL: 3 : 1 THE APPELLANT RESERVES THE RIGHT TO ADD, ALT ER OR AMEND TO THE ABOVE GROUNDS OF APPEAL. 2. WE FIND THAT APPEAL FILED BY THE ASSESSEE BEFORE T HE LD. CIT(A) WAS DISMISSED IN LIMINE AS THE SAID APPEAL WAS FILED MANUALLY BEFORE THE LD. CIT(A), I.E, FIRST APPELLAT E AUTHORITY, WHEREAS THE ASSESSEE WAS REQUIRED TO FILED APPEAL E LECTRONICALLY BY 15/06/2016 AS PER THE NOTIFICATION ISSUED IN THI S REGARD. IN VIEW OF THE APPEAL DISMISSED IN LIMINE, THE ADJOURN MENT SOUGHT BEFORE US BY THE LEARNED COUNSEL OF THE ASSESSEE FO R FILING PAPER- BOOK WAS REJECTED. 3 ITA NO.2507/DEL/2018 3. WE FIND FROM PARA 4.7 OF THE IMPUGNED ORDER THAT T HE LD. CIT(A) HAS HELD THAT DEFECT IN APPEAL WOULD BE REMO VED BY WAY OF FILING APPEAL ELECTRONICALLY AS PER THE APPLICABLE PROVISIONS. THE LD. CIT(A) HAS FURTHER NOTED IN PARA 4.6 OF THE IMP UGNED ORDER THAT ASSESSEE HAS FILED THE APPEAL IN ELECTRONIC FO RM ON 28/02/2017 BEFORE LEARNED COMMISSIONER OF INCOME-TA X (APPEALS)-20, MUMBAI, BUT NO COPY OF TRANSFER OF JU RISDICTION TO MUMBAI U/S 127 OF THE INCOME-TAX ACT, 1961 (IN SHOR T THE ACT) WAS MADE AVAILABLE TO HIM. IN PARA 4.8 THE LD. CIT( A) HAS MENTIONED THAT SAID APPEAL FILED BEFORE THE LEARNED CIT(A)-20, MUMBAI WOULD BE CONSIDERED BY THE COMPETENT AUTHORI TY FOR DISPOSAL AS PER CBDT GUIDELINES. BEFORE US, NO INFO RMATION HAS BEEN PROVIDED BY THE LEARNED COUNSEL OF THE ASSESSE E REGARDING THE STATUS OF THE APPEAL FILED ELECTRONICALLY ON 28 /02/2017 BEFORE THE LD. CIT(A)-20, MUMBAI. 3.1 THE RIGHT OF THE ASSESSEE FOR APPEAL IS A SUBSTANT IAL RIGHT, WHICH SHOULD NOT BE TAKEN AWAY FOR TECHNICAL BREACH OF NOT FILING APPEAL IN THE ELECTRONIC FORM. IF THE ASSESSEE CHOO SES TO PURSUE HIS APPEAL, HE SHOULD BE ALLOWED TO FILE APPEAL IN ELECTRONIC FORM AS PER THE RULES. THE ASSESSEE HAS FILED APPEAL IN MANUAL FORM INSTEAD OF ELECTRONIC FORM, MAY BE DUE TO UNAWARENE SS ON THE PART OF PROFESSIONAL HANDLING FILING OF THE APPEAL OR ANY OTHER REASON. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCE S, WE RESTORE THE MATTER BACK TO THE LD. CIT(A) WITH THE DIRECTIO N THAT: (I) IF THE ELECTRONIC APPEAL FILED BY THE ASSESSEE DATED 28/02/2017 HAS BEEN CONSIDERED FOR ADJUDICATION OR 4 ITA NO.2507/DEL/2018 ALREADY ADJUDICATED, THEN THIS APPEAL OF THE ASSESS EE FILED MANUALLY, MAY BE TREATED AS INFRUCTUOUS . (II) IF SAID APPEAL DATED 28/02/2017 HAS NOT BEEN A CTED UPON BY THE DEPARTMENT AND HAS BEEN DISMISSED OR REJECTED DUE TO LACK OF JURISDICTION, THEN WE DIREC T THE ASSESSEE TO FILE APPEAL IN ELECTRONIC FORM AS PER I NCOME TAX RULES, 1962 FRAMED IN THIS REGARD ALONG WITH REQUEST FOR CONDONATION OF DELAY, WHICH SHALL BE CONSIDERED IN ACCORDANCE WITH LAW AND APPEAL SHALL BE DECIDED ON MERIT. THIS APPEAL FILED MANUALLY SHALL BE TREATED AS INFRUCTUOUS. (III) IF ANY APPEAL IN ELECTRONIC FORM IN COMPLIANC E TO PARA 4.7 OF THE IMPUGNED ORDER OF THE LEARNED CIT(A) HAS ALREADY BEEN FILED, THEN SAME MAY BE CONSIDERED IN ACCORDANCE WITH LAW AND THIS APPEAL FILED MANUALLY BE TREATED AS INFRUCTUOUS. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2021 SD/- SD/- (KULDIP SINGH) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21 ST OCTOBER, 2021. RK/- (DTDC) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI