M/s Toffee Agricultural Farms Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 2515/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9621 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 27-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard; Principle of natural justice; Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 2515/DEL/2017 ASSESSMENT YEAR: 2013-14 TOFEE AGRICULTURAL FARMS PT. LTD. VS. ITO, WARD 25 (3), 67, FRIENDS COLONY WEST, NEW DELHI NEW DELHI (PAN: AACCT3058J) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : MS. ASHIMA NEB, SR. DR. ORDER PER H.S. SIDHU, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 27.2.2017 OF THE LD. CIT(A)-9, NEW DELHI RELATING T O ASSESSMENT YEAR 2013-14 ON THE FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH ON FACTS AND IN LAW IN DISMISSING THE AP PEAL IN LIMINE MERELY ON THE TECHNICAL GROUNDS THAT THE APP EAL HAS NOT BEEN FILED IN ACCORDANCE WITH THE CBDT NOTIFICATION NO. SO637(E) NO. 11/2016 DATED 01/03/2016 FOR E-FILING OF APPEALS. 1.1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS FURTHER ERRED BOTH ON FACTS AND IN LAW IN NOT CONSI DERING THE 2 FACT THAT THE ASSESSEE COMPANY HAS MADE DUE ATTEMPT S TO FILE THE SAID APPEAL ONLINE BUT REMAINED UNSUCCESSFUL DU E TO SOME TECHNICAL GLITCHES WHICH WAS ALSO ACCEPTED BY CBDT IN ITS SUBSEQUENT CIRCULAR DATED 26.5.2016. 1.2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS FURTHER ERRED BOTH ON FACTS AND IN LAW IN NOT ACCEP TING THE FACT THAT THE SAID APPEAL WAS REQUIRED TO BE FILED WITHI N 30 DAYS OF RECEIPT OF ASSESSMENT ORDER. THE SAID TIME LIMIT OF FILING OF APPEAL WAS GOING TO EXPIRE ON 26TH OF APRIL, 2016 A ND ON THE SAID DATE APPELLANT WAS LEFT WITH NO CHOICE BUT TO FILE A PAPER APPEAL. 1.3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS FURTHER ERRED BOTH ON FACTS AND IN LAW IN NOT ACCEP TING THE BONAFIDE BELIEF OF ASSESSEE COMPANY THAT ONCE THE A PPEAL IS ADMITTED IN PAPER FORM, THE ASSESSEE COMPANY WAS NO T REQUIRED TO FILE THE SAID APPEAL ELECTRONICALLY. 1.4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS FURTHER ERRED BOTH ON FACTS AND IN LAW IN NOT CURIN G THE DEFECTS IDENTIFIED IN FILING FORM 35 ON THE PRINCIPLES OF N ATURAL JUSTICE. THE APPELLANT COMPANY CRAVES LEAVE TO ADD, ALTER OR AMEND THE GROUND OF APPEAL AT A LATER STAGE. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3 3. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE P RESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 4. DURING THE HEARING, IT WAS NOTED FROM THE GROUND S OF APPEAL THAT DURING THE FIRST APPELLATE PROCEEDINGS ASSESSEES APPEAL WAS TREATED AS NON-EST AND THE SAME WAS DISMISSED IN LIMINE BY THE LD. CIT (A) BY PASSING A EXPARTE ORDER. IT HAS BEEN MENTIONED IN THE GROUNDS OF APP EAL THAT LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL ON THE GROUND THAT T HE SAME WAS TO BE MANDATORILY ON-LINE BEFORE 15 TH JUNE, 2016 PARTICULARLY WHEN IT WAS BROUGHT TO HIS NOTICE THAT THE ELECTRONIC APPEAL THOUGH FI LED BELATEDLY HAS BEEN FILED ON 18.2.2017 AND LD. CIT(A) OUGHT TO HAVE TAGGED TH E ELECTRONIC APPEAL WITH MANUAL APPEAL WHICH WAS FILED WITHIN THE PRESCRIBED TIME. IT WAS FURTHER MENTIONED IN THE GROUNDS OF APPEAL THAT LD. CIT(A) INSTEAD OF DISMISSING THE ELECTRONIC APPEAL, SHOULD HAVE DECIDED THE SAME ON MERITS IGNORING THE TECHNICAL ASPECTS OF NOT HAVING FILED THE APPEAL EL ECTRONICALLY WITHIN THE TIME PRESCRIBED AS HE DOES NOT HAVE THE POWER UNDER SECT ION 250(6) OF THE INCOME TAX ACT, 1961 TO DISMISS THE APPEAL IN LIMINE. 4 5. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND STATED THAT LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSE E IN ACCORDANCE WITH CBDT GUIDELINES, WHICH DOES NOT NEED ANY INTERFEREN CE. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORDS ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE GROUNDS OF APPEAL. W E FIND THAT LD. CIT(A) HAS OBSERVED THAT ASSESSEE WAS REQUIRED TO FILE TH E APPEAL ONLY IN ELECTRONIC FORM LATEST BY 15.6.2016. HOWEVER, THE PRESENT APP EAL / COPY OF THE APPEAL FILED MANUALLY IN THE OFFICE OF THE LD. CIT(A) WAS A PAPER APPEAL AND THUS DOES NOT MEET THE REQUIREMENT OF THE EXTANT RULES, HENCE, HE TREATED THE APPEAL AS NON-EST AND THE APPEAL WAS DISMISSED IN L IMINE. HOWEVER, WE HAVE NOTED FROM THE GROUNDS OF APPEAL THAT ASSESSE ES APPEAL WAS TREATED AS NON-EST AND THE SAME WAS DISMISSED IN LIMINE BY THE LD. CIT(A) BY PASSING A EXPARTE ORDER. WE FIND CONSIDERABLE COGE NCY IN THE CONTENTION OF THE ASSESSEE THAT LD. CIT(A) HAS ERRED IN DISMISSIN G THE APPEAL ON THE GROUND THAT THE SAME WAS TO BE MANDATORILY ON-LINE BEFORE 15 TH JUNE, 2016 PARTICULARLY WHEN IT WAS BROUGHT TO HIS NOTICE THAT THE ELECTRONIC APPEAL THOUGH FILED BELATEDLY HAS BEEN FILED ON 18.2.2017 AND LD. CIT(A) OUGHT TO HAVE TAGGED THE ELECTRONIC APPEAL WITH MANUAL APPEA L WHICH WAS FILED WITHIN THE PRESCRIBED TIME. WE FURTHER FIND THAT LD. CIT( A) INSTEAD OF DISMISSING THE ELECTRONIC APPEAL, SHOULD HAVE DECIDED THE SAME ON MERITS IGNORING THE TECHNICAL ASPECTS OF NOT HAVING FILED THE APPEAL EL ECTRONICALLY WITHIN THE TIME PRESCRIBED AS HE DOES NOT HAVE THE POWER UNDER SECT ION 250(6) OF THE INCOME TAX ACT, 1961 TO DISMISS THE APPEAL IN LIMINE. IN VIEW OF ABOVE, IT IS NOTED THAT LD. CIT(A) HAS NOT DISCUSSED IN DETAIL THE FACTS AND CIRCUMSTANCE OF THE CASE AND ALSO DID NOT DEAL THE ISSUE ON MERIT AND PASSED A NON-SPEAKING EXPARTE ORDER, WHICH IN OUR OPINION, IS NOT IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE A ND IT IS AN ERRONEOUS APPROACH. AFTER READING SECTION 250(6) OF THE ACT , WE ARE ALSO OF THE CONSIDERED VIEW THAT ASSESSEES CASE SHOULD BE DECI DED ON MERITS, WHICH THE LD. CIT(A) HAS NOT DONE. HOWEVER, IT IS A SETTLED L AW THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE SPEAKING ONE. IN TH IS REGARD, WE DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SA HARA INDIA (FARMS) VS. 5 CIT & ANR. IN [2008] 300 ITR 403 WHEREIN IT HAS BEEN HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. 6.1 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND IN THE INTEREST OF JUSTICE, WE REMIT BACK THE ISSUES IN DISPUTE TO T HE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR HEARING WI TH THE DIRECTIONS TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES INV OLVED IN THE APPEAL AND DECIDE THE SAME AFRESH, AFTER CONSIDERING ALL THE E VIDENCES/DOCUMENTS AND PASS A SPEAKING ORDER ON THE MERITS OF THE CASE AND GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE IS ALSO DIRECTED TO FILE ALL THE NECESSARY EVIDENCES / DOCUMENTS BEFORE THE LD. CIT(A) TO SUBSTANTIATE ITS CASE AND DID NOT TAKE ANY UNNECES SARY ADJOURNMENT IN THE PROCEEDINGS BEFORE THE LD. CIT(A). 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 04/07/2019. SD/- SD/- (B.R.R. KUMAR) [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED:04/07/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR