Sushil Sipani, Tezpur V. Income Tax Officer, Ward-2, Tezpur

ITA 271/GTY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1689 (ITAT-GUWAHATI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 09-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANDEEP SENGUPTA JCIT LD
• Assessee Lawyers: ANIL KUMAR AGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , G UWAHATI BENCH , E - COURT AT KOLKATA BEFORE SHRI A.T, VARKEY , JM & DR. A .L. SAINI, AM ITA N O . 2 71 / GAU /201 8 ( ASSESSMENT YEAR : 20 1 4 - 15 SHRI SUSHIL SIPANI PAN: A TSPS 5326A VS. I.T.O., WARD - 2, TEZPUR ( / APPELLANT) .. ( / RESPONDENT) APPELLANT BY : SHRI ANIL KUMAR AGARWAL, FCA REVENUE BY : SHRI SANDEEP SENGUPTA, JCIT, LD. SR.DR / DATE OF HEARING : 1 3 / 05 /201 9 / DATE OF PRONOUNCEMENT: 12 /0 6 /2019 / O R D E R PER DR. A. L. SAINI, AM : THE CAPTIONED APPEAL FILED BY THE ASSESSEE , PERTAINING TO ASSESSMENT YEAR 201 4 - 15 , IS DIRECTED AGAINST THE ORDER DATED 27 - 07 - 201 8 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) , GUWAHATI - 1 , GUWAHATI , WHIC H IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 14 3 (3) R.W.S 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 18.08.2016 . 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: - GROUND NUMBER 1 FOR THA T THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) HAS ERRED IN LAW AND HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE IN DISMISSING THE APPEAL IN LIMINE WITHOUT PROVIDING ANY OPPORTUNITY TO RECTIFY THE DEFECT. THE APPEAL HAS BEEN DISMISSED IN LIMINE ON T ECHNICAL GROUND FOR NOT FILING THE APPEAL ELECTRONICALLY AFTER MORE THAN ONE YEAR. HOWEVER IT MAY BE PERTINENT TO NOTE HERE THAT THE APPEAL WAS ACCEPTED BY THE COMMISSIONER OF INCOME TAX (APPEAL) ALTHOUGH THE SAME WAS NOT FILED ELECTRONICALLY AND WAS FIX ED ON 27 - ITA NO. 271 /GAU/2018 SUSHIL SIPANI 2 10 - 2017 AND 26 - 02 - 2018 AND WRITTEN SUBMISSIONS WERE ALSO SUBMITTED IN MARCH, 2018 WHICH INDICATES THAT EVEN THE DEPARTMENT WAS ALSO NOT AWARE OF THE SYSTEM OF E - FILING OF APPEALS TILL MARCH, 2018. MOREOVER BEFORE DISMISSING THE APPEAL, WHICH WAS ACCEPTED INITIALLY, NO REASONABLE OPPORTUNITY WAS EVER PROVIDED TO THE ASSESEE THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. APPEAL IS A VESTED RIGHT OF THE ASSESSEE - APPELLANT AND THIS RIGHT CANNOT BE REFUSED ON THE TECHNICAL GROUND. 3 . WE HAVE H EARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. 4 . AT THE OUTSET ITSELF THE LD. COUNSEL FOR THE ASSESSE SUBMITTED BEFORE US THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF CO - ORDINATE BENCH, ITAT, DELHI IN THE CASE OF SHRI GURI NDER SINGH DHILLON VS. ITO, WARD 15(4), NEW DELHI IN ITA NO. 6595/DEL/2016 FOR THE A.Y 2013 - 14, WHEREIN THE TRIBUNAL HELD AS FOLLOWS: - 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD . IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE FILED THE APPEAL BEFORE THE ID. CIT (A) MANUALLY WITHIN TIME AS PER THE OLD PROVISIONS. LATER. ON, THE MANNER OF FURNISHING THE APPEAL IN FORM NO.35 BEFORE THE ID. CIT (A) WAS AMENDED VI DE NOTIFICATION NO.5/2016 DATED 06.04.2016 AND THE PROCEDURE WAS LAID DOWN. THEREAFTER, THE CBDT EXTENDED THE PERIOD FOR FILING THE APPEAL ELECTRONICALLY TO 15.06.2016 AND THE ASSESSEE FILED THE APPEAL ELECTRONICALLY ON 08.10.2016. IN THE PRESENT CASE, THE EARLIER APPEAL FILED BY THE ASSESSEE MANUALLY ON 18.04.2016 WAS WELL WITHIN TIME. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, DIRECT THE ID. CIT (A) TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER CONDONING THE DELAY, IF ANY', IN FILIN G THE APPEAL ELECTRONICALLY SINCE IT WAS THE FIRST YEAR WHEN THE PROVISIONS FOR FILING THE APPEAL WERE CHANGED AND IT WAS DIRECTED TO FILE ELECTRONICALLY, THE HARDSHIP FACED BY THE ASSESSEE WAS ALSO EXPLAINED BEFORE THE ID. CIT (A) WHICH IS MENTIONED I N PARA 3.1 OF THE IMPUGNED ORDER THAT THE DELAY WAS OCCASIONED DUE TO TECHNICAL ISSUE AND LACK OF KNOWLEDGE REGARDING THE DULY INTRODUCED E - FILING PROCEDURE. IN VIEW OF THE AFORESAID DISCUSSION, WE SET ASIDE THE IMPUGNED ORDER AND DIRECT THE LD. CIT (A ) TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER CONDONING ITA NO. 271 /GAU/2018 SUSHIL SIPANI 3 THE DELAY, IF ANY, BY PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . SINCE THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF THE CO - ORDINATE BENCH, ITAT, DELHI IN THE CASE OF SHRI GURINDER SINGH DHILLON (SUPRA) AND THERE IS NO CHANGE IN FACTS AND IN LAW AND THE LD. DR FOR THE REVENUE HAS FAILED TO BRING ANY MAT E RIAL TO CONTROVERT THE FINDINGS OF THE CO - ORDINATE BENCH, ITAT, DELHI, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND DIRECT HIM TO DECIDE THE APPEAL OF ASSESSEE ON MERITS AFTER CONDONING THE DELAY, IF ANY, BY PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSE. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS A LLOWED. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOU NCED IN THE OPEN COURT ON THIS 12 /0 6 /201 9 . SD/ - ( A.T. VARKEY ) SD/ - ( A. L. SAINI ) / JUDICIAL MEMBER /ACCOUNTANT MEMBER /KOLKATA ; DATED: 12 / 0 6 /201 9 *PP , S R. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - SHRI SUSHIL SIPANI, HARI PATTI, TEZPUR - 784001 , ASSAM . 2. / THE RESPONDENT. - INCOME TAX OFFICER, WARD - 2, O/O J.C.I.T, EX - POLICE LINE, TEZPUR - 784001. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, GAUHATI 6. / GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR /SR.PS I.T.A.T, KOLKATA BENCHES, KOLKATA