BHARGAVI DHIREN PATEL, MUMBAI V. ITO 16(2)(2), MUMBAI

ITA 3044/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5805 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONI
• Keywords: Opportunity of being heard
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 3043/MUM/18 2008-09 BHARGAVI DHIREN PATEL, 38, WADIA BUILDING, 9-B, 1 ST FLOOR, CAWASJI PATEL STREET, FORT MUMBAI [PAN: AAKPP5294M] INCOME TAX OFFICER- 16(2)(2), MUMBAI 3044/MUM/18 2009-10 3045/MUM/18 2009-10 DHIREN MOHANLAL PATEL, 40, WADIA BUILDING, 9-B, 1 ST FLOOR, CAWASJI PATEL STREET, FORT MUMBAI [PAN: AAHPP6691H] INCOME TAX OFFICER- 16(2)(3), MUMBAI 3046/MUM/18 2008-09 APPELLANT BY : SHRI MANDAR VAIDYA, RESPONDENT BY : SHRI VIJAY KUMAR SONI, DR DATE OF HEARING : 29-01-2019 DATE OF PRONOUNCEMENT : 01-02-2019 O R D E R THESE ARE FOUR APPEALS BY TWO DIFFERENT ASSESSEES AN D THESE ARE DIRECTED AGAINST FOUR SEPARATE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, MUMBAI, ALL DATED 28-03-2018. SINCE THE FACTS AND ISSUES INVOLVED IN AL L THESE APPEALS ARE COMMON AND IDENTICAL, ALL THESE APPEALS W ERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THI S COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS. 3043 TO 3046/MUM/2018 : 2 : 2. SINCE THE GROUNDS RAISED BY THE ASSESSEES IN ALL THESE APPEALS ARE IDENTICAL, FOR THE SAKE OF CONVENIENCE, G ROUNDS RAISED IN ITA NO. 3043/MUM/2018 (AY.2008-09) ARE REPRODUCED HEREIN BELOW: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN DISMISSING THE APPELLANTS APPEAL SOLELY ON THE GRO UND THAT THE APPEAL, IN THE FIRST INSTANCE, WAS FILED MANUALLY A ND NOT ELECTRONICALLY. 2. THE LD. CIT (A) WAS NOT JUSTIFIED IN IGNORING TH E SUBSEQUENT ELECTRONIC FILING ON 3 RD AUGUST 2017. 3. THE LD. CIT(A) MISDIRECTED HIMSELF IN NOT APPREC IATING THAT FAILURE TO FILE THE APPEAL ONLINE (VIZ. ELECTRONICALLY) IN THE FIRST INSTANCE IS, AT BEST, A PROCEDURAL DEFECT AND THE DIFFERENCE BETWEE N MANUAL AND ELECTRONIC IS MERELY OF FORM. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN NOT ADJUDICATING THE APPEAL ON MERITS EVEN THOUGH, SUBSEQUENTLY, THE DEFECT WAS REMOVED VIZ. APPEAL WAS FILED ELECTRONIC ALLY. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MODIFY ANY GROUNDS OF APPEAL. 3. AT THE OUTSET, IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT AT PER PARA NO. 3.5 OF THE ORDER OF LD. CIT (A) IN ALL THESE FOUR CASES, IT IS NOTICED BY THE LD. CIT (A ) THAT THE ASSESSEE WAS REQUIRED TO FILE THE APPEAL IN ELECTRONIC FORM LATEST BY 15-06-2016 BUT THE ASSESSEE HAS FILED THE APPE ALS MANUALLY AS PAPER APPEAL AND THE SAME DOES NOT MEET THE REQUIREMENTS LAID DOWN BY THE RELEVANT NOTIFICATION OF THE RULE. IT WAS FURTHER SUBMITTED THAT THE SAME RULE AND FACTUM OF ITA NOS. 3043 TO 3046/MUM/2018 : 3 : FILING THESE APPEALS IN PAPER MODE WAS BROUGHT TO THE NOTICE OF THE ASSESSEE AND IN RESPONSE THEREAFTER, THE ASSESSEE HAD FILED ALL THESE APPEALS IN E FORM ON 03-08-2017. IT WAS FU RTHER SUBMITTED THAT IN SPITE OF NOTING THIS THAT THE ASSESSEE HAS FILED ON-LINE APPEAL ON 03-08-2017, THE LD. CIT (A) HAS DISMISSED THESE APPEALS AS NOT MAINTAINABLE. THEREAFTE R, HE SUBMITTED THAT A COPY OF TRIBUNALS ORDER IN THE CASE OF KIRAN GULAB BHATIA VS. ITO IN ITA NOS. 6400 TO 6403/MUM/20 17 DT. 04-01-2018 AND POINTED OUT THAT IN THESE CASES ALSO, APPEAL WAS FILED BY THE ASSESSEE IN PAPER FORM AND N OT IN ELECTRONIC MODE AND THE TRIBUNAL HAS DIRECTED THE LD. CIT(A) TO ADJUDICATE THE APPEAL OF THE ASSESSEE ON MERITS. HE SUBMITTED A COPY OF THE SAID ORDER OF THE TRIBUNAL AND DRAWN MY ATTENTION TO PARA NO. 3.1 OF THE SAID ORDER. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT (A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE FAC TS ARE NOT IN DISPUTE THAT THE ASSESSEE WAS REQUIRED TO FILE THE APPEAL IN ELECTRONIC FORM LATEST BY 15-06-2016 BUT EARLIER, TH E ASSESSEE FILED APPEALS IN PAPER FORM AND LATER, ON 0 3-08-2017, THE ASSESSEE FILED THE APPEALS ON-LINE. IN SPITE OF THIS, LD. CIT(A) DISMISSED THESE APPEALS OF ASSESSEE IN LIMINE BY HOLDING ITA NOS. 3043 TO 3046/MUM/2018 : 4 : THAT THESE APPEALS FILED BY THE ASSESSEE ARE NOT ADMISSI BLE AS PER SECTION 249(1) OF THE INCOME TAX ACT, 1961 (ACT). AS PER THE TRIBUNALS ORDER RENDERED IN THE CASE OF KIRAN G ULAB BHATIA VS. ITO (SUPRA) ALSO, THE APPEAL WAS DISMISSED BY THE LD. CIT(A) MERELY ON TECHNICAL GROUND BECAUSE THE APP EALS WERE FILED IN MANUAL FORM INSTEAD OF E-FORM PRESCRIB ED BY THE CBDT. UNDER THESE FACTS, THE TRIBUNAL RESTORED THE MATTE R BACK TO THE FILE OF CIT (A) TO DECIDE THE APPEALS OF A SSESSEE ON MERITS. IN THIS CONNECTION, I REPRODUCE PARA NOS. 3 & 3.1 OF THIS TRIBUNALS ORDER, CITED SUPRA, FOR READY REFEREN CE: 3. SO FAR AS, THE GROUND RAISED, ON MERIT IS CONCE RNED, IT WAS EXPLAINED THAT THE IMPUGNED ORDERS WERE PASSED BY T HE FIRST APPELLATE AUTHORITY AND DISMISSED THE APPEAL MERELY ON TECHNICAL GROUNDS AS WERE FILED ON MANUAL FORM INSTEAD OF E FORM PRESCRIBED BY CBDT WITHOUT APPRECIATING THAT THE ASSESSEE DUE TO SOME DIFFICULTIES COULD NOT BE ABLE TO E-FILE THE APPEAL MEMOS, WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. THE LD. DR CONTENDED THAT THE ASSESSEE WAS EXPECTED TO E-FILE ON PRESCRIBED FORM. 3.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT GOING INTO MU CH DELIBERATION, I AM OF THE VIEW THAT MERELY ON TECHNICAL GROUNDS, TH E APPEALS SHOULD NOT HAVE BEEN DISMISSED AND THE ASSESSEE SHOULD HAV E BEEN HEARD ON MERIT. THE ASSESSEE IS A PROPRIETOR OF HEMKIRAN ELECTRONICS. ADDITIONS U/S 68 OF THE INCOME TAX ACT, 1961 (HEREI NAFTER THE ACT) WERE MADE WHILE PASSING THE ORDER U/S 143(3) R.W.S. 147 OF THE ACT. ADMITTEDLY, THE ASSESSEE WAS EXPECTED TO FILE THE A PPEALS ELECTRONICALLY AS PER CIRCULAR NO.20 AUTOMATICALLY DOES NOT LEAD TO THE CONCLUSION THAT IF DUE TO TECHNICAL REASONS, THE SA ME IS FILED MANUALLY, IT WILL BE TREATED NOT MAINTAINABLE. IF T HE LD. COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT SATISFIED WITH MANUA L FILING, NOTHING PREVENTED HIM TO HEAR THE PRACTICAL DIFFICULTIES OF THE ASSESSEE AND THEN TO ADJUDICATE THE SAME. THE APPEALS WERE FILED ON MANUAL FORM ITA NOS. 3043 TO 3046/MUM/2018 : 5 : ON 13/02/2017. EVEN OTHERWISE, AS PER ARTICLE-265 O F THE CONSTITUTION OF INDIA ONLY DUE ARE TO BE LEVIED/COL LECTED, THEREFORE, WITHOUT GOING INTO MUCH DELIBERATION, THE LD. COMMI SSIONER OF INCOME TAX (APPEAL) IS DIRECTED TO ADJUDICATED THE APPEALS OF THE ASSESSEE ON MERIT AFRESH. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, T O SUBSTANTIATE HIS CLAIM. THUS, ALL THE APPEALS ARE ALLOWED FOR STATIS TICAL PURPOSES. FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED FO R STATISTICAL PURPOSES. 4.1. SINCE IN THE PRESENT CASE, THE FACTS ARE SIMILAR, I FEEL IT FIT AND PROPER TO FOLLOW THIS ORDER OF TRIBUNAL AND SET AS IDE THE ORDER OF CIT (A) IN ALL THESE FOUR APPEALS AND RESTOR E THE MATTER BACK TO THE FILE OF CIT (A) FOR DECISION ON MER IT WITH THE SAME DIRECTIONS AS WERE GIVEN BY THE TRIBUNAL IN THE ABOVE CASE AS PER PARA REPRODUCED ABOVE. IN VIEW OF THIS D ECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STA GE. 5. IN THE RESULT, ALL THE FOUR APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST DAY OF FEBRUARY, 2019 SD/- (A.K. GARODIA) /ACCOUNTANT MEMBER /MUMBAI; /DATED : 1 ST FEBRUARY, 2019 TNMM ITA NOS. 3043 TO 3046/MUM/2018 : 6 : / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT 3. # $ ( ) / THE CIT(A), MUMBAI 4. # $ / CIT, MUMBAI 5. '()*+ , #-*+#. , / DR, ITAT, MUMBAI 6. )/01 / GUARD FILE # / BY ORDER, ' //TRUE COPY// /# (DY./ASST. REGISTRAR) #-*+#., / ITAT, MUMBAI