D.V.BUILDERS & DEVELOPERS PVT. LTD., MUMBAI V. DCIT - 12(2)(1), MUMBAI

ITA 2551/MUM/2019

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9265 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARAT ANSHLE

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 . 2551 /MUM/2019 ( / ASSESSMENT YEAR: 2013 - 14 ) M/S D. V. BUILDERS & DEVELOPERS PVT. LTD. B - 29, SHOP NO. 8 & 9, DREAMLAND CHS LTD., SECTOR 11, NEAR TMT BUS DEPO, SHANTI NAGAR, MIRA ROAD (EAST), THANE - 401107 / VS. DCIT 12(2)(1), 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, NEW MARINE LINE, MUMBAI - 400 020 ./ ./ PAN NO. AA CCD1205B ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI HITESH SHAH, AR / RESPONDENTBY : SHRI BHARAT ANSHLE , 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) - 20 IN 2 I.T.A. NO. 2551 /MUM/201 9 M/S D. V. BUILDERS & DEVELOPERS PVT. LTD SHORT REFERRED AS LD. CIT(A) , MUMBAI, DATED 14.03.19 FOR A SSESSMENT YEAR (IN SHORT A Y ) 2013 - 14 . 2. THE MAIN CONTENTION OF THE ASSESSEE THAT LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT IT WAS DIGITALLY SIGNED BY THE DIRECTOR OF THE ASSESSEE AND WITHOUT GIVING OPPORTUNITY FOR THE REMOVAL OF TECHNICAL DEFECTS IF ANY IN FURNISHING THE APPEAL IN FORM NO. 35, DISMISSED THE APPEAL. 3. AT THE OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT LD. CIT(A) HAS NOT ADJUDICATED THE GROUNDS OF APPEAL OF THE ASSESSEE ON MERITS AND DISMISSED THE APPEAL OF THE ASSES SEE ON THE GROUND THAT IT WAS DIGITALLY SIGNED BY THE DIRECTOR OF THE ASSESSEE WITHOUT GIVING ANY OPPORTUNITY FOR THE REMOVAL OF TECHNICAL DEFECTS IF ANY IN FURNISHING THE APPEAL IN FORM NO. 35. THEREFORE, HE PRAYED THE PRESENT APPEAL BE RESTORED BACK TO T HE FILE OF LD. CIT(A) FOR ADJUDICATING THE GROUNDS ON MERITS. 4. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS PASSED BY THE REVENUE AUTHORITIES . 3 I.T.A. NO. 2551 /MUM/201 9 M/S D. V. BUILDERS & DEVELOPERS PVT. LTD 5 . CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL PLACED ON RECORD, WE NOTICE THAT LD. CIT(A) HAS NOT ADJUDI CATED THE MER ITS OF THE CASE OF ASSESSEE AND DISMISSED THE APPEAL ON THE GROUND THAT IT WAS NOT SIGNED BY THE ASSESSEE WITHOUT GIVING ANY OPPORTUNITY FOR THE REMOVAL OF TECHNICAL DEFECTS. THE PERCEPTION MAY HAVE BEEN THAT AFTER POINTING OUT THE DEFECT AND SEEKING CLARIFICATION THE SAID ACTION SHOULD HAVE BEEN FOLLOWED UP WITH A SPECIFIC OPPORTUNITY TO CURE THE DEFECT. WE NOTICED FROM THE DOCUMENT SUBMITTED BEFORE US THAT THE ASSESSEE HAS SIGNED DIGITALLY AND LD. CIT(A) HAS NOT REFERRED TO THOSE PAPERS ON OV ERSIGHT. ON CONSIDERING WE FIND THAT HOWEVER ILL ADVISED, MISCONCEIVED AND OBDURATE STA ND THE ASSESSEE MAY HAVE TAKEN, STILL SPECIFIC OPPORTUNITY TO CURE THE DEFECT CANNOT BE DENIED. THE PURPOSE OF THE REMEDY PROVIDED IN THE ACT BY WAY OF FILING AN APPEAL OUGHT NOT TO BE ALLOWED TO BE DEFEATED ON TECHNICALITIES. THE DEFECT BEING AN IRREGULARITY OUGHT TO BE ALLOWED TO BE RECTIFIED BY WAY OF AN OPPORTUNITY TO CURE THE SAME. ACCORDINGLY IN THE INTEREST OF SUBSTANTIAL JUSTICE WE SEE NO GOOD REASON AS TO WHY THE ASSESSEE SHOULD BE DEPRIVED OF SEEKING ADJUDICATION ON MERITS AFTER HAVING CURED THE DEFECT. THE OBJECT OF COURTS IS TO 4 I.T.A. NO. 2551 /MUM/201 9 M/S D. V. BUILDERS & DEVELOPERS PVT. LTD DECIDE THE RIGHTS OF PARTIES AND NOT TO PUNISH THEM FOR THEIR MISTAKES IN THE CONDUCT OF THEIR CASES AND THAT THE PROPER FUNCTION OF TH E COURT WAS NOT IN SUCH CASES TO IMPOSE DISCIPLINE BUT TO DECIDE THE POINTS OF CONTROVERSY. 6. THEREFORE, CONSIDERING THE ABOVE , WE ARE OF THE VIEW THAT THE PRESENT CASE IS A FIT CASE FOR RESTORING THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTIO NS TO GIVE THE ASSESSEE A SPECIFIC OPPORTUNITY TO RECTIFY THE DEFECT S IF ANY DURING THE PROCCEDIGNS AND TO DECIDE THE CASE ON MERITS. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . 7 . IN THE NET RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES . 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 5 I.T.A. NO. 2551 /MUM/201 9 M/S D. V. BUILDERS & DEVELOPERS PVT. LTD 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI