GIRISH HIMATLAL VALIA, MUMBAI V. CIT(A)- 56 , MUMBAI

ITA 3211/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6824 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY PRATAP SINGH
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Period of limitation
• Section: 143(1); 201; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 3211 / MUM . /2018 ( ASSESSMENT YEAR : 20 10 11 ) GIRISH HIMATLAL VALIA 10 DEC, BADRI VISHAL R.A. KIWADWAI ROAD WADALA, MUMBAI 400 031 PAN ABHPV9288K . APPELLANT V/S INCOME TAX OFFICER WARD 1 7 ( 1 )( 5 ), MUMBAI . RESPONDENT ASSESSEE BY : SHRI M. SUBRAMANIAN REVENUE BY : SHRI AJAY PRATAP SINGH DATE OF HEARING 28 . 0 2 .201 9 DATE OF ORDER 28.02.2019 O R D E R THE A FORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING ORDER DATED 19 TH MARCH 201 8 , PASSED BY THE LEARNED COMMISSIONER (APPEALS) 5 6 , MUMBAI, FOR THE ASSESSMENT YEAR 201 0 1 1 . 2 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL CARRYING ON BUSINESS OF TRADING IN IRON AND STEEL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 18 TH AUGUST 2010, DECLARING INCOME OF ` 15,97,990. T HE RETURN OF INCOME WAS INITIALLY PROCESSED 2 GIRISH HIMATLAL VALIA UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT). SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM DGIT (INV.), MUMBAI, AND SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, INDICATING THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODATION BILLS PROVIDED BY HAWALA OPERATOR S , THE A SSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT AND ULTIMATELY COMPLETED THE ASSESSMENT BY MAKING ADDITION OF AN AMOUNT OF ` 8,45,490, ON ACCOUNT OF NON GENUINE PURCHASES. CHALLENGING THE AFORESAID ADDITION, THE ASSESSEE PREFERRED AP PEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3 . THE LEARNED COMMISSIONER (APPEALS) DISMI SSED ASSESSEES APPEAL IN LIMINE SINCE IT WAS NOT E FILED AS PER THE AMENDED RULE 45 EFFECTIVE FROM 1 ST MARCH 2016. 4 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , ASSES SEE HAD FILED THE APPEAL MANUALLY WITHIN THE PRESCRIBED PERIOD OF LIMITATION. THEREFORE, ONLY FOR A TECHNICAL DEFAULT DUE TO NON FILING OF APPEAL ELECTRONICALLY, LEARNED COMMISSIONER (APPEALS) SHOULD NOT HAVE DISMISSED ASSESSEES APPEAL IN LIMIN E , BUT SHOU LD HAVE PROVIDED AN OPPORTUNITY TO THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY. HE SUBMITTED , IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL, MUMBAI BENCH, IN ALL INDIA FEDERATION OF TAX PRAC TI TIONERS V/S ITO, [2018] 166 DTR (MUM.) (TRIB.) 276. 3 GIRISH HIMATLAL VALIA 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS). 6 . I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSEE HAS FILED THE APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS) MANUALLY WITHIN THE PRESCRIBED TIME LIMIT PROVIDED UNDER THE STATUTE. HOW E VER, LEARNED COMMISSIONER (APPEALS) HAS DISMI SSED ASSESSEES APPEAL IN LIMINE SINCE IT WAS NOT FILED ELECTRONICALLY IN TERMS OF AMENDED RUL E 45. IN MY CONSIDERED OPINION, WHEN THE ASSESSEE HAS FILED THE APPEAL MANUALLY WITHIN THE PRESCRIBED PERIOD OF LIMITATION, LEARNED COMMISSIONER (APPEALS) SHOULD NOT HAVE DISMISSED THE APPEAL IN LIMIN E FOR A MERE TECHNICAL BREACH . RATHER, HE SHOULD HAVE PR OVIDED AN OPPORTUNITY TO THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY AND DECIDED THE APPEAL ON MERIT. I FIND , WHILE DECIDING A DISPUTE OF IDENTICAL NATURE, THE TRIBUNAL, MUMBAI BENCH, IN ALL INDIA FEDERATION OF TAX PRACTITIONERS (SUPRA) HAS HELD THAT WH EN THE APPEAL FILED BY THE ASSESSEE MANUALLY IS WITHIN THE PRESCRIBED PERIOD OF LIMITATION, LEARNED COMMISSIONER (APPEALS) OUGHT NOT TO HAVE DISMISSED THE 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 10 DAYS AND DIRECTED LEARNED COMMISSIONER (APPEALS) TO DECIDE THE APPEAL ON MERIT. THE AFORESAID DECISION OF THE TRIBUNAL SQUARELY APPLIES TO THE FACTS OF THE 4 GIRISH HIMATLAL VALIA PRESENT CASE. ON A QUERY FROM THE B ENCH, LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE , IN THE MEAN WHILE , HAS FILED THE APPEAL ELECTRONICALLY. IN THAT EVENT, I DIRECT THE LEARNED COMMISSIONER (APPEALS) TO CONDONE THE DELAY IN FILING THE APPEAL, IF ANY, AND DECIDE THE APPEAL ON MERIT. 7 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.02.2019 SD/ SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 28.02.2019 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 (SR. PRIVATE SECRETARY) ITAT, MUMBAI