BLOSSOM DEVELOPERS, MUMBAI V. ACIT-30(1), Mumbai

ITA 2998/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9746 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 09-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPDR
• Keywords: Opportunity of being heard; Period of limitation
• Section: 143(3); 12A; 10B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.2998/MUM/2018 ASSESSMENT YEAR: 2013-14 M/S BLOSSOM DEVELOPERS, SURVEY NO. 2073, VILLAGE, DINDOSHI PATHANWADI, MALAD (EAST), MUMBAI-400097 / VS. ACIT CIRCLE-30(1), MUMBAI ( !'# /ASSESSEE) ( $ / REVENUE) P.A. NO.AAHFB6147Q !'# / ASSESSEE BY SHRI PRAKASH PANDIT $ / REVENUE BY SHRI NEIL PHILIP-DR % $& ' #( / DATE OF HEARING : 10/09/2018 ' #( / DATE OF PRONOUNCEMENT 10/09/2018 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 28/03/2018 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE GROUND RAISED IS THAT HAVING ACCEPTED THE APPEA L ITA NO.2998/MUM/2018 BLOSSOM DEVELOPERS 2 MANUALLY ON 02/05/2016, OPPORTUNITY SHOULD HAVE BEE N GIVEN TO THE ASSESSEE TO RECTIFY PROCEDURAL DEFECT IN FILING THE SAID APPEAL BY ASKING HIM TO FILE ELECTRONICALLY AN D THUS, THE APPEAL SHOULD HAVE BEEN ADJUDICATED ON MERIT. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE , SHRI PRAKASH PANDIT, ADVANCED ARGUMENTS WHICH ARE IDENTI CAL TO THE GROUND RAISED. THE LD. COUNSEL PLACE RELIANCE U PON THE DECISION OF THE TRIBUNAL IN THE CASE OF ALL INDIA F EDERATION OF TAX PRACTITIONERS VS INCOME TAX OFFICER (ITA NO.7134/MUM/2017), ORDER DATED 04/05/2018 ON THE OT HER HAND, SHRI NEIL PHILIP, LD. DR, DEFENDED THE IMPUGN ED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE BACKGROUND, WE ARE REPRODUCING HEREUNDER THE DECISI ON OF THE TRIBUNAL IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS VS INCOME TAX OFFICER (ITA NO.7134/MU M/2017) ORDER DATED 04/05/2018 FOR READY REFERENCE AND ANAL YSIS:- THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, MU MBAI, DATED 15.09.17 FOR A.Y. 2013-14. ITA NO.2998/MUM/2018 BLOSSOM DEVELOPERS 3 2. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESS EE IS A TRUST REGISTERED WITH DIT, MUMBAI U/S 12A AND WITH CHARI TY COMMISSIONER, MUMBAI. THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.09.11 ALONGWITH THE INCOME AND EXPENDITURE AC COUNT, BALANCE SHEET AND AUDIT REPORT IN FORM 10B DECLARIN G TOTAL INCOME AT RS. 1,81,777/-. THEREAFTER, ASSESSMENT FO R AY 2013-14 WAS COMPLETED BY ORDER U/S 143(3) OF THE I.T. ACT O N 17.02.16 AT TAXABLE INCOME OF RS. 14,22,664/-. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRE D APPEAL BEFORE LD. CIT(A) AND THE LD. CIT(A) NOTICED THAT R ULE 45 OF I.T. RULES 1962 MANDATING COMPULSORY E-FILING OF APPEALS BEFORE CIT(A) WITH EFFECT FROM 1ST MARCH 2016, THEREFORE L D. CIT(A) DISMISSED THE APPEAL IN LIMINI BY HOLDING THAT MAND ATORY REQUIREMENT OF E-FILING OF APPEAL HAVE NOT BEEN FUL FILLED BY THE ASSESSEE. THEREFORE THE APPEAL FILED MANUALLY WAS N OT TREATED AS VALID APPEAL AND HENCE THE SAME WAS DISMISSED. AGGR IEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE US. 3. NOW BEFORE US LD. AR HAS CHALLENGED THE ORDER OF LD. CIT(A) IN NOT ALLOWING HEARING OF APPEAL FILED BY THE ASSE SSEE MERELY ON THE BASIS OF ALLEGED DEFAULT OF NOT HAVING FILED EL ECTRONICALLY. 4. LD. AR REITERATED THE SAME ARGUMENTS AS WERE RAI SED BEFORE LD. CIT(A) AND SUBMITTED EVEN THOUGH THE APPEAL WAS FILED IN PAPER FORM AND UNDER THE RELEVANT PROVISIONS OF I.T . ACT 1961, BUT THE LD. CIT(A) HAS ERRED IN NOT ALLOWING HEARIN G OF APPEAL FILED BY THE ASSESSEE MERELY ON THE BASIS OF ALLEGE D DEFAULT OF NOT HAVING FILED ELECTRONICALLY. LD. AR FURTHER SUBMITT ED THAT LD. CIT(A) OUGHT TO HAVE TAKEN INTO ACCOUNT THAT THE AL LEGED COMPLIANCE DEFAULTS WERE OF A TECHNICAL NATURE AND BEING INTRODUCED FOR THE FIRST TIME IN THE STATUTE BOOKS, OUGHT TO HAVE CONSIDERED LEGALLY AND HEARD THE APPEAL ON MERITS. IT WAS FURTHER SUBMITTED THAT LD. CIT(A) HAS ERRED IN DENYING AN O PPORTUNITY OF APPEAL TO DESERVING APPELLANT AND THUS RESULTED IN DENIAL OF OPPORTUNITY OF JUSTICE IN THE DESERVING CASE. ITA NO.2998/MUM/2018 BLOSSOM DEVELOPERS 4 5. ON THE OTHER HAND LD. DR APPEARING ON BEHALF OF THE DEPARTMENT SUPPORTED THE ORDERS PASSED BY THE REVEN UE AUTHORITIES. 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY THE REVENUE AUTHORITIES. FROM THE RECORDS WE NOTICED THAT ELECTRONICALLY FILING OF THE APPEALS WAS INTRO DUCED FOR THE FIRST TIME VIDE RULE 45 OF I.T. RULES 1962, MANDATI NG COMPULSORY E-FILING OF APPEALS BEFORE APPELLATE COMMISSIONER W ITH EFFECT FROM 1STMARCH 2016. WE NOTICED THAT IN THIS RESPECT , THERE IS NO CORRESPONDING AMENDMENT IN ANY OF THE PROVISIONS OF THE SUBSTANTIVE LAW I.E I.T. ACT, 1961. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSMEN T IN THE ABOVE CASE WAS COMPLETED U/S 143(3) OF THE I.T. ACT 1961. HOWEVER THE ASSESSEE HAS FILED APPEAL BEFORE LD. CIT(A) IN PAPE R FORM AS PRESCRIBED UNDER THE PROVISIONS OF I.T. ACT 1961 WI THIN THE PRESCRIBED PERIOD OF LIMITATION. BUT THE SAME WAS D ISMISSED BY LD. CIT(A) BY HOLDING THAT ASSESSEE HAD NOT FILED A PPEAL THROUGH ELECTRONIC FORM, WHICH IS MANDATORY AS PER I.T. RUL ES 1962. AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION , WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF STATE OF PUNJ AB VS.SHYAMALALMURARI AND OTHERS REPORTED IN AIR 1976 (SC) 1177 HAS CATEGORICALLY HELD THAT COURTS SHOULD NOT GO ST RICTLY BY THE RULEBOOK TO DENY JUSTICE TO THE DESERVING LITIGANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. IT HAS BEEN REITERATED B Y THE HONBLE SUPREME COURT THAT ALL THE RULES OF PROCEDURE ARE H ANDMAID OF JUSTICE. THE LANGUAGE EMPLOYED BY THE DRAFTSMAN OF PROCEDURAL LAW MAY BE LIBERAL OR STRINGENT, BUT THE FACT REMAI NS THAT THE OBJECT OF PRESCRIBING PROCEDURE IS TO ADVANCE THE C AUSE OF JUSTICE. THE HONBLE APEX COURT HAS SAID IN AN ADVERSARIAL SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY O F PARTICIPATING IN THE PROCESS OF JUSTICE DISPENSATIO N. ITA NO.2998/MUM/2018 BLOSSOM DEVELOPERS 5 THE HONBLE SUPREME COURT IN ITS JUDGEMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF RANIKUSUMVRS. KANCHA N DEVI, REITERATED THAT, A PROCEDURAL LAW SHOULD NOT ORDINA RILY BE CONSTRUED AS MANDATORY, AS IT IS ALWAYS SUBSERVIENT TO AND IS IN AID OF JUSTICE. ANY INTERPRETATION, WHICH ELUDES OR FRUSTRATES THE RECIPIENT OF JUSTICE, IS NOT TO BE FOLLOWED. FROM THE FACTS OF THE PRESENT CASE, WE GATHERED THA T THE ASSESSEE HAD ALREADY FILED THE APPEAL IN PAPER FORM, HOWEVER ONLY THE E- FILING OF APPEAL HAS NOT BEEN DONE BY THE ASSESSEE AND ACCORDING TO US, THE SAME IS ONLY A TECHNICAL CONSIDERATION. IN THIS RESPECT, WE RELY UPON THE JUDGEMENT OF HONBLE SUPREME COURT , WHEREIN THE HONBLE SUPREME COURT HAS REITERATED THAT IF IN A GIVEN CIRCUMSTANCES, THE TECHNICAL CONSIDERATION AND SUBS TANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THEN IN THAT EVENTUALITY THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED AND CANNOT OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONSIDE RATIONS. APART FROM ABOVE WE HAVE ALSO NOTICED THAT THE COOR DINATE BENCH OF HONBLE ITAT DELHI BENCH IN APPEAL ITA NO. 6595/DEL/16 IN CASE TITLED GURINDER SINGH DHILLON V RS. ITO HAD RESTORED THE MATTER TO THE FILE OF LD. CIT(A) UNDER IDENTICAL CIRCUMSTANCES WITH A DIRECTION DO DECIDE APPEAL AFR ESH ON MERIT, AFTER CONDONING THE DELAY, IF ANY. SINCE IN THE PRESENT CASE, WE FIND THAT APPEAL IN T HE PAPER FORM WAS ALREADY WITH LD. CIT(A), THEREFORE IN THAT EVEN TUALITY THE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL SOLEL Y ON THE GROUND THAT THE ASSESSEE HAS NOT FILED THE APPEAL E LECTRONICALLY BEFORE THE APPELLATE COMMISSIONER. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AS WELL AS THE CASE LAWS DISCUSSED AND RELIED UPON ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE CAUSE OF JUSTICE WOULD BE SERVED IN C ASE, WE SET ASIDE THE ORDERS OF LD. CIT(A) & ALLOW THE PRESENT APPEAL. WHILE SEEKING THE COMPLIANCE, WE DIRECT THE ASSESSEE TO F ILE THE APPEAL ELECTRONICALLY WITHIN 10 DAYS FROM THE DATE OF RECE IPT OF THIS ORDER. IN CASE, THE DIRECTIONS ARE FOLLOWED THEN IN THAT EVENTUALITY, THE DELAY IN E-FILING THE APPEAL SHALL STAND CONDONED. ITA NO.2998/MUM/2018 BLOSSOM DEVELOPERS 6 LD. CIT(A) IS FURTHER DIRECTED TO CONSIDER THE APPE AL FILED BY THE ASSESSEE ON MERITS BY PASSING A SPEAKING ORDER. RES ULTANTLY, WE ALLOW THE APPEAL FILED BY THE ASSESSEE. 7. IN THE NET RESULT THE APPEAL FILED BY THE ASSESS EE IS ALLOWED. 2.2. WE HAVE PERUSED THE AFORESAID ORDER AND ALSO THE DECISION FROM DELHI BENCH OF THE TRIBUNAL IN THE CA SE OF SHRI JAGBIR SINGH SHARMA VS ACIT (ITA NO.809/DEL/2017) O RDER DATED 05/06/2017. THE MUMBAI BENCH OF THE TRIBUNAL IN A LATER DECISION DATED 04/05/2018 HAS DULY CONSIDERED RULE-45 OF I.T. RULES, 1962, MANDATING COMPULSORILY E-FILIN G OF APPEALS BEFORE THE LD. COMMISSIONER OF INCOME TAX ( APPEAL) W.E.F. 01 ST MARCH, 2016, THE DECISION FROM HON'BLE APEX COURT IN THE CASE OF STATE OF PUNJAB VS SHAYMLAL MURARI & ORS. (AIR) (1976)(SUPREME COURT)1177, RANIKUSUM VS KANCH AN DEVI (AIR)(2005)(SUPREME COURT)3304, GURINDER SINGH DHILLON VS INCOME TAX OFFICER (ITA NO.6595/DEL/2016 ), WHICH ARE SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT ASSESSEE, BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) DISMISSED THE APPEAL OF THE ASSESSEE IN VIEW OF NOT IFICATION NUMBER S.O.637(E) DATED 01 ST MARCH, 2016, ISSUED BY CBDT AMENDING RULE-45 OF THE INCOME TAX RULES-1962, THUS , CONSIDERING THE TOTALITY OF FACTS AND THE AFORESAID DECISIONS, ITA NO.2998/MUM/2018 BLOSSOM DEVELOPERS 7 WE DIRECT THE LD. COMMISSIONER OF INCOME TAX (APPEA L) TO ADJUDICATE THE APPEAL OF THE ASSESSEE AFRESH ON MER IT. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH NECESSARY EVIDENCE, IF ANY, IN S UPPORT OF HIS CLAIM. THE DELAY IN E-FILING THE APPEAL IS CONDONED AND LIBERTY IS GRANTED TO THE ASSESSEE TO E-FILE THE APPEAL BEF ORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WITHIN 15 DAYS FROM THE RECEIPT OF THIS ORDER (IF NOT FILED ELECTRONICA LLY BY THE ASSESSEE). THUS, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/09/2018. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; - DATED : 10/09/2018 F{X~{T? P.S/. . . , ITA NO.2998/MUM/2018 BLOSSOM DEVELOPERS 8 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 201 / THE RESPONDENT. 3. 3 3 % 4# , ( ./ ) / THE CIT, MUMBAI. 4. 3 3 % 4# / CIT(A)- , MUMBAI 5. 6$7 # , 3 ./( . , % & / DR, ITAT, MUMBAI 6. 8! 9& / GUARD FILE. / BY ORDER, / (DY./ASSTT. 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