RAJANKUMAR MANCHANDA, MUMBAI V. INCOME TAX OFFICER 10(3)(4), MUMBAI

ITA 306/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2207 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 12-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRAS AD, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR REHMAN , HON'BLE ACCOUNTANT MEMBER IT A. NO. 306 /MUM/201 8 (A.Y: 201 0 - 11) S HRI RAJANKUMAR MANCHANDA PLOT NO. 16, SUMILA, 10 TH ROAD JVPD SCHEME, JUHU J U HU , VILE PARLE MUMBAI 400 049 PA N: AAEPM1846Q V. INCOME TAX OFFICER 10( 3)(4) ROOM NO. 554, 5 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ROHIT GOLECHA DEPARTMENT BY : JOTHI L AKSHMI NAYAK DATE OF HEARING : 01.10.2019 DATE OF PRONOUNCEMENT : 28 .11 .2019 O R D E R PER C.N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESS EE AGAINST THE ORDER OF THE LD. COMMIS SIONER OF INCOME - TAX (APPEALS) - 17 , MUMBAI [HEREINAFTER FOR SHORT 'LD. CIT(A) ] DATED 31.10.2017 FOR THE A.Y. 2010 - 11 . 2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT A SSESSEE HAS RAISED HIS GRIEVANCE THAT THE LD.CIT(A) DISMISSED THE APPEAL ON TECHNICAL 2 IT A. NO. 306 /MUM/201 8 (A.Y: 201 0 - 11) S HRI RAJANKUMAR MANCHANDA GROUND AS THE ASSESSEE HAS NOT FILED THE APPEAL IN ELECTRONIC FORM BUT FILED MANUALLY. A SSESSE E ALSO CHALLENGED THE ORDER OF THE LD.CIT(A) IN CONFIRMING THE PENALTY U/S. 271(1)(C) OF THE ACT . 3. AT THE OUTSET, L D . COUNSEL FOR THE ASSESSEE SUBMITTED THAT QUANTUM APPEAL HAS BEEN SET - ASIDE BY THE TRIBUNAL IN ITA.NO. 4919/ MUM / 2014 DATED 21.04.2016 (C OPY OF THE ORDER IS PLACED ON RECORD ) . THEREFORE , LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE QUANTUM APPEAL HAS BEEN SET - ASIDE PENALTY WILL NOT SURVIVE. 4. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW . 5. ON A PERUSAL OF THE ORDER OF THE LD.CIT(A) , WE FIND THAT THE APPEAL WAS DISMISSED OFF BY THE LD.CIT(A) TREATING IT AS NOT MAINTAINABLE OBSERVING THAT THE MANUAL APPEAL FILED IS NOT ADMI SSIBLE AS PER PROVISIONS OF SECTION 249(1) OF THE ACT . THUS, LD.CIT(A) TREATED THE APPEAL OF THE ASSESSEE AS NOT MAINTAINABLE AND IN VALID. S INCE , THE LD.CIT(A) DID NOT ENTERTAIN THE APPEAL ITSELF W E ARE OF THE VIEW THAT THIS ISSUE MATTER SHOULD GO BACK TO THE FILE OF THE LD.CIT(A) FOR ADMISSION OF APPEAL AT FIRST INSTANCE AND THEREAFTER ADJUDICATION ON MERITS OF THE ISSUE. 3 IT A. NO. 306 /MUM/201 8 (A.Y: 201 0 - 11) S HRI RAJANKUMAR MANCHANDA 6. IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS V. ITO IN ITA.NO. 7134/MUM/2 017 THE TRIBUNAL HELD THAT NON - FILING OF APPEAL IN THE ELECTRONIC FORM IS ONLY A PROCEDURAL DEFECT WHICH CAN BE CURED AND THE TRIBUNAL RESTORED MATTER BACK TO THE FILE OF THE LD.CIT(A) FOR DISPOSAL OF APPEAL ON MERITS AND THE ASSESSEE WAS DIRECTED TO F ILE APPEAL IN ELECTRONIC FORM WITHIN TEN DAYS ON RECEIPT OF ORDER. SIMILAR VIEW HAS BEEN TAKEN BY THE COORDINATE BENCH IN THE CASE OF MEDIA N ET SOFTWARE SERVICES (INDIA) PVT. LTD., V. ACIT IN ITA.NO. 362/ MUM / 2018 DATED 27.02.2019 . FOLLOWING THE ABOVE DECISIONS, WE RESTORE TH IS APPEAL TO THE FILE OF THE LD.CIT(A) AND ASSESSEE IS DIRECTED TO E - FILE THE AFORESAID APPEAL IF NOT FILED EARLIER, WITHIN A PERIOD OF FIFTEEN ( 15 ) DAYS FROM THE DATE OF RECEIPT OF THIS ORDER, CONSEQUENT TO WHICH DELAY IN E - FILING SHALL STAND CONDONED AND THE LD.CIT(A) SHALL DISPOSE OFF THE APPEAL ON MERITS. NEEDLESS TO SAY THAT THE LD.CIT(A) SHALL GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 28 TH NOVEMBER , 2019 SD/ - SD/ - ( S. RIFAUR REHMAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 28 / 1 1 / 2019 GIRIDHAR , S R. PS 4 IT A. NO. 306 /MUM/201 8 (A.Y: 201 0 - 11) S HRI RAJANKUMAR MANCHANDA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM