Trikambhai R. Dangariya, Rajkot V. Dy. Commr. of Income Tax, International Taxation, Rajkot

ITA 294/RJT/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6489 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 04-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MJ RANPURA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AH MEDABAD] (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ITA. NO: 294/RJT/2017 (ASSESSMENT YEAR: 2009-10) MR. TRIKAMBHAI R. DANGARIYA KUNAL SHILP GULABVIHAR SOCIETY, STREET NO. 1, RAJKOT V/S DCIT (INTERNATIONAL TAXATION) RAJKOT (APPELLANT) (RESPONDENT) PAN: ALEPD0344D APPELLANT BY : SHRI M.J. RANPURA, AR RESPONDENT BY : SHRI PRAVEEN VERMA, SR. D.R. ( )/ ORDER DATE OF HEARING : 27 -09-201 8 DATE OF PRONOUNCEMENT : 28-09-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-13, AHMEDABAD DATED 22.06.2017 PERTAINING TO A.Y. 2009- 10 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 294/ RJT/2017 . A.Y. 2009-10 2 1. THE APPELLANT IS NRI INDIVIDUAL AND RESIDING A BROAD SINCE LONG 2. THE CASE OF THE ASSESSEE SELECTED UNDER SCRUTIN Y ON ACCOUNT OF SALE OF PROPERTY IN INDIA. IN THE COURSE OF ASSESSMENT PROCEEDING, LEARNED ITO CALLED FOR THE DETAILS AND THE SAME HAVE BEEN SUBMITTED IN FULL AND COMPLIANCE MADE IN TIME PRODUCING MATER IAL EVIDENCES. 3. THE LEARNED ITO HAS ERRED ON FACTS AND IN LAW IN PASSING AN ORDER UNDER SECTION 143(3) R.W;S. 147 OF THE ACT, AND MADE ADDITION OF RS. 2636017/- A ND ISSUED DEMAND NOTICE FOR THETAXOFRS. 1096897/- 4. BEING AGGRIEVED BY SUCH UNJUSTIFIED AND UNLAWF UL LEVY OF TAX, AN HONEST AND GENUINE APPELLANT HAS PREFERRED THIS APPEAL TO HON. CIT(A) - 13, AHMED ABAD. 5. HON. CIT(A) - 13, AHMEDABAD HAS DISMISSED THE APP EAL AS THE SAME WAS NOT ELECTRONICALLY FILED, THOUGH APPELLANT IS ALLOWED TO FILE PHYSICAL APPEAL BY LAW. 6. IN THE ORDER, WHILE QUOTING THE NOTIFICATION O F CBDT HON. CIT(A) - 13, HIMSELF MENTIONED THAT, ELECTRONIC FILLING OF APPEAL IS MANDATORY FOR THOSE WHO REQUIRED TO FURNISH THEIR RETURN OF INCO ME ELECTRONICALLY. 7. IN THE APPEAL FILED, IN FORM NO. 35 APPELLANT HAS MENTIONED THAT, RETURN WAS NOT FILED AS NOT TAXABLE INCOME, ALSO IN THE ORDER BY LEARNED AO MENT IONED THAT ASSESSEE HAS NOT FILED RETURN. HENCE APPELLANT IS ALLOWED TO FILE APPEAL PHYSICALLY . 2. THE FACTS OF THE CASE ARE THAT THE APPEAL WAS INSTI TUTED ON 03/02/2017 AGAINST THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCO ME TAX, INTERNATIONAL TAXATION, RAJKOT U/S. 143(3) R.W.S. 147 OF THE INCO ME TAX ACT DATED 26/12/2016 FOR THE ASSESSMENT YEAR 2009-10. 3. IT WAS NOTED THAT THE INSTANT APPEAL WAS MANUALLY F ILED IN THIS OFFICE, I.E., IN PAPER FORM. ACCORDINGLY, VIDE LETTER DATED 04-05-20 17, THE APPELLANT WAS GIVEN AN OPPORTUNITY TO EXPLAIN AS TO WHY THE MANUALLY FI LED APPEAL SHOULD NOT BE TREATED AS INVALID. THE ATTENTION OF THE APPELLANT WAS DRAWN TO NOTIFICATION NO. S.O. 637(E) MARCH 01, 2016, OF THE CBDT, NEW DELHI, ISSUED IN EXERCISE OF THE POWERS CONFERRED BY SECTION 249(1), READ WITH S ECTION 295 OF THE ACT. THE INCOME-TAX (3RD AMENDMENT) RULES. 2016, AMENDED RUL E 45 OF THE INCOME-TAX ITA NO. 294/ RJT/2017 . A.Y. 2009-10 3 RULES. 1962, MANDATING COMPULSORY ELECTRONIC FILING OF APPEALS BEFORE AN APPELLATE COMMISSIONER WITH EFFECT FROM MARCH, 01, 2016, FOR THOSE REQUIRED TO FURNISH THEIR RETURN OF INCOME ELECTRONICALLY. 4. NO REPLY HAS BEEN FILED BY THE APPELLANT FOR THE SA ID LETTER. 5. THE MATTER HAS BEEN CONSIDERED. TWO ARE NOT DISPUTE D. FIRSTLY, THAT IT HAS BECAME COMPULSORY FOR THOSE WHO ARE REQUIRED TO FUR NISH THEIR RETURN OF INCOME ELECTRONICALLY, TO ALSO FILE THEIR APPEALS E LECTRONICALLY BEFORE A COMMISSIONER OF INCOME TAX (APPEALS) ON OR AFTER MA RCH 01, 2016, THIS IS DEMONSTRATED BY THE EXPLICIT LANGUAGE OF THE GOVERN ING NOTIFICATION DATED MARCH 01, 2016, TO THE EFFECT THAT AN APPEAL TO THE COMMISSIONER (APPEALS) SHALL BE MADE ELECTRONICALLY IN FORM NO, 35 UNDER A DIGITAL SIGNATURE/ELECTRONIC VERIFICATION CODE. SECONDLY, THE APPEAL UNDER CONSI DERATION HAS BEEN FILED MANUALLY AFTER THE .AFOREMENTIONED CUT-OFF DATE AND IT DOES NOT FALL IN THE EXCLUDED CATEGORY. THUS, THE SAME FAILS AT THE THRE SHOLD ITSELF. 6. IN THE RESULT, THE APPEAL UNDER CONSIDERATION IS NO T ADMITTED, BEING INVALID. FOR STATISTICAL PURPOSES, IT IS TREATED AS DISMISSED. 7. NOW APPELLANT IS BEFORE US. 8. ON THE PERUSAL OF THE ORDER OF THE LD. CIT(A), IT I S NOTICED THAT THE ASSESSEE HAD FILED PAPER APPEAL MANUALLY BEFORE LD. CIT(A) INSTE AD OF FILING APPEAL ELECTRONICALLY AS AMENDED UNDER RULE 45 OF INCOME T AX RULE 1962 WITH EFFECT FROM 01.03.2016. THE LD. CIT(A) THUS OBSERVED IT WA S INCUMBENT UPON THE ASSESSEE TO FILE APPEAL ELECTRONICALLY TO PURSUE RE MEDY AVAILABLE BEFORE HIM. THE ITA NO. 294/ RJT/2017 . A.Y. 2009-10 4 LD. CIT(A) THEREAFTER OBSERVED THAT THE CASE OF ASS ESSEE IS COVERED BY PROVISIONS OF SECTION 249 RULE WITH RULE 45 OF INCO ME TAX RULE 1962 WHICH LAYS DOWN THAT EVERY APPEAL SHALL BE FILED IN THE P RESCRIBED FORUM AND SHALL BE VERIFIED IN THE PRESCRIBED MANNER. THE LD. CIT(A) A CCORDINGLY FOUND THAT PAPER APPEAL SO FILED BY THE ASSESSEE IS DEFECTIVE APPEAL AND NON MAINTAINABLE FOR ADJUDICATION OF APPEAL . THE LD. CIT(A) ACCORDINGLY DISMISS THE APPEAL OF THE ASSESSEE AS DEFECTIVE AND NON MAINTAINABLE. 9. IN THE CONTEXT, WE NOTE ASSESSEE HAS DULY FILED THE PAPER APPEAL WHICH WAS RECEIPTED BY THE OFFICE OF LD. CIT(A) ON 04.05.2017 . THEREAFTER A NOTICE WAS ISSUED BY THE LD. CIT(A) TO THE APPELLANT BUT NO RE PLY WAS SUBMITTED TO THE LD. CIT(A). 10. ON THE OTHER HAND, APPELLANT CONTENTION WAS THAT HE IS NRI INDIVIDUAL AND RESIDING ABROAD SINCE LONG AND HIS INCOME IS NOT TA XABLE AND A.O. HAS COMMITTED ERROR IN LAW AND ON FACTS FOR RAISING DEM AND FOR THE TAX OF RS. 1096897/-. THE BREACH COMMITTED BY THE ASSESSEE IS CLEARLY OF TECHNICAL NATURE. WE ARE THUS OF THE CONSIDERED OPINION, THAT A BENIG N VIEW TO BE TAKEN IN THIS CASE. THEREFORE, WE CONSIDER IT PROPER TO GRANT OPP ORTUNITY TO THE ASSESSEE FOR DISPOSAL OF APPEAL IN ACCORDANCE WITH LAW. ASSESSEE CAN FILE E-APPEAL TO THE LD. CIT(A) SHALL BE ENTITLED TO FILE APPEAL ELECTRONICA LLY AFRESH WITHIN 60 DAYS FROM THE RECEIPT OF THIS ORDER. INTERVENING TECHNICAL DE LAY IN FILING THE APPEAL AS PER PRESCRIBED METHOD STANDS CONDONED. THE MATTER IS RE MANDED BACK TO THE FILE OF LD. CIT(A) FOR ADJUDICATION OF ISSUE. ITA NO. 294/ RJT/2017 . A.Y. 2009-10 5 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 28 - 09- 2018 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 28/09/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD