CRH MANAGEMENT SERVICES PVT. LTD., MUMBAI V. ITO 14(1)(2), MUMBAI

ITA 3014/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5417 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIRAMA KARTHIKEYAN
• Keywords: Period of limitation; Set aside
• Section: 143(3); 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER IT A NO. 3014/MUM./2018 ( ASSESSMENT YEAR : 20 12 13 ) CRH MANAGEMENT SERVICES PVT. LTD. 73 C3, NORTH AVENUE MAKER MAXITY BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI 400 051 PAN AADCC4578P . APP ELL ANT V/S INCOME TAX OFFICER WARD 14 ( 1 )(2), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI ABHI RAMA KARTHIKEYAN DATE OF HEARING 0 8 .0 5 .2019 DATE OF ORDER 15.05.2019 O R D E R PER SAKTIJIT DEY. J.M. THE AFORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING T HE ORDER DATED 28 TH FEBRUARY 201 8 , PASSED BY THE LEARNED COMMISSIONER (APPEALS) 2 1 , MUMBAI, DISMISSING ASS ESSEES APPEAL IN LIMINI FOR NOT FILING IT ELECTRONICALLY. 2 CRH MANAGEMENT SERVICES PVT. LTD. 2 . WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THE NOTICE OF HEARING SENT BY REGISTERED POST HAS ALSO RETURNED BACK UNSE RVED. IN THESE CIRCUMST ANCES, WE PROCEED TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND THE MATERIAL AVAILABLE ON RECORD. 3 . BRIEF FACTS ARE, THE ASSESSMENT IN CASE OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 11 TH MARCH 2016, MAKING A DISALLOWANCE OF ` 12 LAKH UNDER SECTION 40(A)(IA) OF THE ACT . A GAINST THE ASSESSMENT ORDER SO PASSED , THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS) MANUALLY . L EARNED COMMISSIONER (APPEALS) NOTICING THAT THE ASSESSEE HAS NOT FILED THE APPEAL ELECTRONICALLY AS PER THE AMENDED RULE 45 OF THE INCOME TAX RULES, 1962, BUT HAS FILED IT MANUALLY , DISMISSED ASSESSEES APPEAL IN LIMINI WITHOUT DECIDING THE ISSUE RAISED THEREIN ON MERIT. 4 . WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD . UNDISPUTEDLY, THE ASSESSEE HAD FILED THE APPEAL BEFORE FIRST APPELLATE AUTHORITY WITHIN THE TIME LIMIT PRESCRIBED UNDER THE STATUTE. HOWEVER, LEA RNED COMMISSIONER (APPEALS) HAS DISMISSED ASSESSEES APPEAL IN LIMINE SINCE IT WAS NOT FILED ELECTRONICALLY IN TERMS OF AMENDED UNDER RULE 45 OF THE RULES. IN OUR OPINION, WHEN THE ASSESSEE HAS FILED THE APPEAL MANUALLY WITHIN 3 CRH MANAGEMENT SERVICES PVT. LTD. THE PRESCRIBED PERIOD OF LIMI TATION, LEARNED COMMISSIONER (APPEALS) SHOULD NOT H AVE DISMISSED THE APPEAL LIMINE F OR A MERE TECHNICAL BREACH . R ATHER HE SHOULD HAVE PROVIDED A N OPPORTUNITY TO THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY AND DECIDE D THE APPEAL ON MERIT. NOTABLY, WHILE DECIDING IDENTICAL NATURE OF DISPUTE IN ALL INDIA FEDERATION OF TAX PRACTIONERS V/S ITO, [2018] 166 DTR (TRIB.) 276 (MUM.), THE CO ORDINATE BENCH HAS HELD THAT WHEN THE APPEAL FILED BY THE ASSESSEE MANUALLY IS WITHIN THE PRESCRIBED PERIOD OF LIMITATION, LE ARNED COMMISSIONER (APPEALS) OUGHT NOT TO HAVE DISMISSED APPEAL SOLELY ON THE GROUND OF NON FILING OF APPEAL ELECTRONICALLY. FURTHER, THE BENCH PERMITTED THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY WITHIN A PERIOD OF TEN DAYS AND DIRECT ED LEARNED COMMIS SIONER (APPEALS) TO DECIDE THE APPEAL ON MERIT. THE AFORESAID DECISION OF THE CO ORDINATE BENCH SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE. IN VIEW OF THE AFORESAID, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) AND DIRECT TH E ASSESSEE TO FILE THE APPEAL ELECTRONICALLY , IF NOT FILED , WITHIN A PERIOD OF 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER AND ON FILING OF SUCH APPEAL ELECTRONICALLY, LEARNED COMMISSIONER (APPEALS) IS DIRECTED TO DECIDE THE APPEAL ON MERITS AFTER DUE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS RAISED ARE ALLOWED FOR STATISTICAL PURPOSES. 4 CRH MANAGEMENT SERVICES PVT. LTD. 5 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON 15.05.2019 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 15.05.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (ASSTT. REGISTRAR) ITAT, MUMBAI