M/S.BHAVESHWAR PROPERTIES PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER WARD 14(1)(3), MUMBAI

ITA 2617/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5421 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S C TIWARI
• Assessee Lawyers: GYANESHWAR KATURAM
• Keywords: Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.2617/M/2018 ASSESSMENT YEAR: 2013-14 M/S. BHAVESHWAR PROPERTIES P. LTD., FINE HOUSE, ASANDJI LANE, 5 TH FLOOR, M.G. ROAD, GHATKOPAR (E), MUMBAI 400 077 PAN: AAACB1619B VS. INCOME TAX OFFICER, WARD 14(1)(3), MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI GYANESHWAR KATURAM, A.R. REVENUE BY : SHRI S.C. TIWARI, D.R. DATE OF HEARING : 15.05.2019 DATE OF PRONOUNCEMENT : 20.05.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 15.01.2018 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE VAR IOUS GROUNDS OF APPEAL IS AGAINST THE ORDER OF LD. CIT(A ) NOT HEARING THE ASSESSEES APPEAL ON MERITS ON THE GROUND THAT ASSESSEE HAS FAILED TO FILE THE APPEAL ONLINE AND DISMISSING TH E APPEAL FILED IN THE PAPER FORM BY THE ASSESSEE ON 18.04.2016. ITA NO.2617/M/2018 M/S. BHAVESHWAR PROPERTIES P. LTD. 2 3. THE FACTS IN BRIEF ARE THAT THE NOTIFICATION NO. S.O.637(E) DATED 01.03.2016 WAS ISSUED BY CBDT, NEW DELHI, AME NDING RULE 45 OF THE I.T. RULES, 1962. THE SAID NOTIFICA TION MANDATES COMPULSORY E-FILING OF APPEALS BEFORE THE APPELLATE COMMISSIONER W.E.F. 01.03.2016 IN RESPECT OF ALL PERSONS WHO ARE REQUIRED TO FURNISH THEIR RETURN OF INCOME ELECTRONICALLY. ACC ORDING TO THE LD. CIT(A), SINCE THE ASSESSEE HAS FAILED TO FILE T HE APPEAL ELECTRONICALLY AND APPEAL WAS FILED AFTER SHOW CAUS E NOTICE ISSUED ON 10.11.2017 WHICH IS NOT IN ACCORDANCE WIT H THE THE PROVISIONS OF THE ACT AND CAN NOT BE ACCEPTED. AC CORDING TO LD. CIT(A) THERE ARE TWO APPEALS FILED BY THE ASSESSEE ONE MANUALLY AND OTHER ELECTRONICALLY WHICH ARE REFLECTING AS PE NDING ON ITBA SYSTEM. THE LD. CIT(A) OBSERVED THAT THE MANUAL AP PEAL FILED BY THE ASSESSEE IS INVALID AB-INITIO AS SAME IS NOT IN ACCORDANCE WITH THE CBDT CIRCULAR AS STATED (SUPRA) AND THUS L D. CIT(A) HELD THAT THE OTHER APPEAL FILED BY THE ASSESSEE W ILL BE TAKEN UP FOR CONSIDERATION AT APPROPRIATE TIME SUBJECT TO CO NDONATION OF DELAY AND FULFILLMENT OF OTHER PROCEDURES AND CONDI TIONS WHICH MAY BE APPLICABLE AND THUS DISMISSED THE MANUAL APP EAL FILED BY THE ASSESSEE. 4. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE S UBMITTED BEFORE THE BENCH THAT ISSUE IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO. 713/M/2017 A.Y. 2013-14 WHEREIN IT HAS BEEN HELD THAT SINCE TH E APPEAL FILED MANUALLY BY THE ASSESSEE IS BEFORE THE LD. CIT(A) A ND THEREFORE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL S OLELY ON THE GROUND THAT ASSESSEE HAS NOT FILED APPEAL ELECTRONI CALLY BEFORE THE APPELLATE COMMISSIONER. IN THIS CASE THE FACTS ARE SLIGHTLY DIFFERENT AS THE ASSESSEE HAS FILED APPEALS MANUALL Y AS WELL AS ITA NO.2617/M/2018 M/S. BHAVESHWAR PROPERTIES P. LTD. 3 ELECTRONICALLY. THE APPEAL FILED ELECTRONICALLY AF TER A SHOW CAUSE NOTICE BY LD. CIT(A) ON 10.11.2017 HAS BEEN KEPT PE NDING TO BE TAKEN UP FOR DISPOSAL AFTER CONDONATION OF DELAY AN D SUBJECT TO FULFILLMENT OF OTHER VARIOUS CONDITIONS. THE LD. A .R., THEREFORE, PRAYED BEFORE US THAT LD. CIT(A)S ORDER MAY BE SET ASIDE AND THE DIRECTION MAY BE ISSUED TO DISPOSE OF THE APPEAL ON MERITS. 5. LD. D.R., ON THE OTHER HAND, RELIED ON THE OF LD . CIT(A). 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT NON FILING WITHIN THE DUE T IME BY THE ASSESSEE ELECTRONICALLY IN TERMS OF NOTIFICATION NO .S.O.637(E) DATED 01.03.2016 SHOULD NOT RESULT IN DENYING THE J USTICE TO THE DESERVING LITIGANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. THE RATIO HAS BEEN LAID BY THE HONBLE APEX COURT IN TH E CASE OF STATE OF PUNJAB VS. SHYAMLAL MURARI & OTHERS (1976) SC 1177. IN THIS CASE THE ASSESSEE HAS FILED E-APPEAL ONLY A FTER SHOW CAUSE NOTICE ISSUED CITING VARIOUS REASONS SUCH AS LACK OF KNOWLEDGE ABOUT E-FILING PROCEDURES AND TECHNICAL I SSUES CONNECTED THEREWITH AND THUS WE ARE OF THE VIEW THA T APPEAL OF THE ASSESSEE FILED MANUALLY WITHIN THE TIME CAN NOT BE DISMISSED WITHOUT CONSIDERING THE MERIT OF THE CASE ON MERE T ECHNICAL REASONS OF NOT FILING THE SAID APPEAL IN E-FORM. S O FAR AS THE ISSUE OF DISMISSING THE MANUAL APPEAL IS CONCERNED, PENDING THE E-APPEAL BY THE ASSESSEE AS FILED IN RESPONSE TO SH OW CAUSE NOTICE ON 10.11.2017, IN OUR OPINION THERE IS NO D ELAY IN FILING THE APPEAL AS THE SUBSEQUENT APPEAL FILED BY THE AS SESSEE ELECTRONICALLY IS ONLY COMPLIANCE OF THE SHOW CAUSE NOTICE AND IN CONTINUATION OF THE APPEAL FILED MANUALLY WITHIN T HE DUE TIME AND CAN NOT BE SAID TO BE FILED OUT OF TIME LIMIT. UNDER THESE ITA NO.2617/M/2018 M/S. BHAVESHWAR PROPERTIES P. LTD. 4 CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSUE B E RESTORED TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME ON ME RITS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.05.2019. SD/- SD/- (SANDEEP GOSAIN) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 20.05.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.