Small Industries Development Bank Of India, Mumbai V. Deputy Commissioner of Income Tax Circle 3(3)(2),Mumbai, Mumbai

ITA 2638/MUM/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9890 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 13-11-2023
• Assessment Year: 2003-2004
• Appeal Filed On: 26-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 250

Judgement Text

1 ITAs 2638 & 2637/Mum/2023 M/s Small Industries Development Bank of India IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G”, MUMBAI BEFORE SHRI.NARENDER KUMAR CHOUDHRY (JUDICIAL MEMBER) AND SHRI GAGAN GOYAL (ACCOUNTANT MEMBER) I.T.A. No.2638/Mum/2023 - A.Y. 2011-12 I.T.A. No.2637/Mum/2023 - A.Y. 2003-04 Small Industries Development Bank of India, SME Development Centre, C-11, G- Block, Bandra Kurla Complex, Bandra East, Mumbai-400 051 PAN : AABCS3480N vs Deputy Commissioner of Income-tax, Circle-3(3)(2), Aayakar Bhavan, M.K. Road, Mumbai-400 020 APPELLANT RESPONDENT Present for the Assessee Shri Rakesh Joshi Present for the Department Shri.Harshad S Vengurlekar (CIT- DR) Date of hearing 14/11/2023 Date of pronouncement 23/11/2023 O R D E R Per Bench: These appeals have been preferred by the Assessee against the separate orders both dated 23/06/2023 impugned herein passed by the National Faceless Appeal Centre (NFAC) Delhi / Ld. Commissioner of Income Tax (Appeals) [in short, Ld. Commissioner] under section 250 of the Income-tax Act, 1961 (in short, the Act) for the A.Ys. 2011-12 & 2003-04, respectively. 2 ITAs 2638 & 2637/Mum/2023 M/s Small Industries Development Bank of India 2. In these cases, the issue involved is identical, hence for the sake of brevity, the same were heard together and are disposed off by this order. 3. We are deciding ITA no. 2368/Mum/2023 {A.Y.2003-04} as lead case. In this case, the Assessing Officer, vide assessment order dated 17/02/2016 passed under section 143(3) read with 263 of the Income-tax Act, 1961 had withdrawn the refund amount of RS.4,04,53,807/- granted by way of interest on interest under section 144A of the Act, against which the Assessee preferred first appeal before the Ld. Commissioner, who dismissed the same in limine for not explaining the sufficient cause for not preferring the appeal within the time limit as prescribed under section 249(2) of the Act. The Assessee being aggrieved is in appeal before us. 3. We observe that in the instant case, assessment order was passed by the Assessing Officer under section 143(3) read with section 263 of the Act which was claimed to have been served upon the Assessee on 23/02/2016 and as per the provisions of section 249(2) of the Act, the Assessee was supposed to file the first appeal before the Ld. Commissioner within one month as prescribed in the statute. The Assessee though had filed appeal in manual form on 22/03/2016 as it appears from Form 35 (manual). However, as per prevailing procedure at that time, the Assessee was supposed to file e-appeal on-line which the 3 ITAs 2638 & 2637/Mum/2023 M/s Small Industries Development Bank of India Assessee had filed only on 09/06/2016 and in column No.14 of Form 35, the Assessee has mentioned “No” in response to the question “whether there is any delay in filing the appeal” whereas it is a fact that the Assessee had filed on-line appeal only on 09/06/2016 which was infact later than 22/03/2016. We observe that the CBDT vide circular No. 20/2016 dated 26.05.2016 extended the period for filing on-line appeals due to technical glitches, by directing that taxpayers who could not successfully e-file their appeal and had filed paper appeals are required to file an e-appeal in accordance with Rule 45 before the extended period i.e. 15-6-2016. Such e-appeals would also be treated as appeals filed within time. In the instant case it is undisputed fact that the Assessee has filed it online e-appeal on 09/06/2016 and therefore as per CBDT circular referred to above, we are in concurrence with the claim of the Assessee that there was no delay in filling of appeal before the ld. Commissioner, hence considering the peculiar facts and circumstances, we are inclined to remand the instant case to the file of the Ld. Commissioner for deciding the same on merits. Accordingly the case is remanded and appeal i.e. ITA no. 2638/Mum/2023 {A.Y. 2003-04 filed by the Assessee is allowed for statistical purposes. 4 ITAs 2638 & 2637/Mum/2023 M/s Small Industries Development Bank of India 4. In view of our decision in ITA no. 2638/Mum/2023 {A.Y. 2003-04}, both the appeals stands allowed for statistical purposes on the same terms. Order pronounced in the open Court on 23/11/2023. Sd/- sd/- (GAGAN GOYAL) (NARENDER KUMAR CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER Pavanan प्रतितिति अग्रेतििCopy of the Order forwarded to : 1. अिीिार्थी/The Appellant , 2. प्रतिवादी/ The Respondent. 3. आयकर आयुक्त CIT 4. तवभागीय प्रतितिति, आय.अिी.अति., मुबंई/DR, ITAT, Mumbai 6. गार्ड फाइि/Guard file. BY ORDER, //True Copy// Asstt. Registrar / Senior Private Secretary ITAT, Mumbai