M A Antony, Chennai V. ITO, Non Corp Ward 15(1), Chennai

ITA 325/CHNY/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2047 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A SUNDARARAJAN RAJ
• Keywords: Unexplained cash credit; Period of limitation; Right to appeal
• Section: 143(3); 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B (SMC) BENCH : CHENNAI . . . , , [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ] ./I.T.A. NO.325/CHNY/2019 ! / ASSESSMENT YEAR : 2008-2009. M.A. ANTONY, 4/234C, MGR. ROAD, 7 TH STREET, PALAVAKKAM, CHENNAI 600 041 VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE WARD 15(1) CHENNAI. [PAN AAFPA 5324E] ( / APPELLANT) ( /RESPONDENT) '# $ % / APPELLANT BY : SHRI. I. DINESH, ADVOCATE &' '# $ % /RESPONDENT BY : SHRI. A. SUNDARARAJAN RAJ, ADDL. CIT. ( ) $ * /DATE OF HEARING : 03-12-2019 +,! $ * /DATE OF PRONOUNCEMENT : 04-12-2019 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-15, CHENNAI (CIT(A) FOR SHORT) DATED 28.12.2018 FOR THE ASSES SMENT YEAR (AY) 2008-2009. ITA NO.325/CHNY/2019 :- 2 -: 2. T HE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS AN INDIVIDUAL. BASED ON THE INFOR MATION THAT ASSESSEE HAVING BANK ACCOUNT BEARING NO.014907300 0001351 IN SOUTH INDIA BANK, MYLAPORE BRANCH, AND ASSESSEE HA D DEPOSITED A45,00,000/- IN HIS BANK ACCOUNT DURING THE PERIOD FROM 01.04.2007 TO 31.03.2008 AND ASSESSEE HAD ALSO NOT FILED RETUR N OF INCOME. THE ASSESSING OFFICER HAD REOPENED THE ASSESSMENT U/S.1 47 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND ISSUED NOT ICE U/S.148 OF THE ACT ON 25.03.2015. IN RESPONSE TO NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 30.10.2015 DISCLOSING TOTAL INCOME OF RS. 1,48,522/-. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT W AS COMPLETED BY THE INCOME TAX OFFICER, NON CORPORATE WARD 15(1), C HENNAI VIDE ORDER DATED 11.03.2016 PASSED U/S. 143(3) R.W.S. 14 7 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) AT TOTAL INCOME OF RS. 48,48,522/-. WHILE DOING SO, THE ASSESSING OFFICER MADE ADDITION OF 47,00,000/- AS UNEXPLAINED CREDIT U/S.68 OF THE ACT, SINCE ASS ESSEE HAD FAILED TO EXPLAIN THE NATURE AND SOURCE FOR THE CASH DEPOSITS OF 45,00,000/- ON 09.05.2007 AND 2,00,000 ON 21.5.2007. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFI CER ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) MANU ALLY ON ITA NO.325/CHNY/2019 :- 3 -: 28.03.2016. THE LD. CIT(A) HAD CALLED UPON THE ASSE SSEE AS TO WHY THE APPEAL CANNOT BE TREATED AS NON-EST IN THE EYES OF LAW AS APPEAL WAS NOT FILED ELECTRONICALLY AS PRESCRIBED UNDER RULE 4 5 OF THE INCOME TAX RULES, 1962, VIDE SHOW CAUSE NOTICE DATED 13.12.201 8. SUBSEQUENTLY, ASSESSEE FILED THE APPEAL ELECTRONICALLY ON 19.12.2 018. THE LD. CIT(A) CONCLUDED THAT APPEAL WAS FILED WITH DELAY OF 918 D AYS, IN ABSENCE OF ANY EXPLANATION FOR DELAY DISMISSED THE APPEAL IN LIMINE. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), TH E APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. THE L D. AUTHORISED REPRESENTATIVE SUBMITTED THE APPEAL WAS FILED MANUA LLY WITHIN THE PERIOD OF LIMITATION AND BASED ON THE SHOW CAUSE NO TICE DATED 13.12.2018, ASSESSEE HAD FILED THE APPEAL ELECTRONI CALLY ON 19.12.2018. THE LD. CIT(A) WITHOUT ADJUDICATING TH E APPEAL ON MERITS, DISMISSED THE SAME ON LIMINE WITHOUT CONSIDERING TH E MERITS OF THE ASSESSMENT. 5. ON THE OTHER HAND, THE LD. SR. DEPARTMENTAL REPRESE NTATIVE PLACED RELIANCE ON THE ORDERS OF LOWER AUTHORITIES. 6. WE HEARD THE RIVAL CONTENTION AND PERUSED THE MATER IAL ON RECORD. THE APPEAL WAS FILED MANUALLY WITHIN THE PERIOD OF LIMITATION PRESCRIBED UNDER THE STATUTE. NO DOUBT INCOME TAX R ULES PRESCRIBES THAT THE APPEAL BEFORE THE LD.CIT(A) SHOULD BE FILE D ELECTRONICALLY. IT IS ITA NO.325/CHNY/2019 :- 4 -: MATTER OF RECORD THAT LD. CIT(A) HAD ACCEPTED THE A PPEAL, THE DEFECT WAS POINTED OUT ONLY IN THE YEAR 2018 AND IMMEDIATE LY, THEREAFTER ASSESSEE HAD FIELD APPEAL ELECTRONICALLY IN TERMS OF RULE 45. THE RIGHT OF APPEAL IS AN SUBSTANTIVE RIGHT. THE FORM OF FI LING OF APPEAL, PROCEDURE PRESCRIBED FALLS WITHIN THE DOMAIN OF LAW OF PROCEDURE. THE LAW OF PROCEDURE HAS TO BE APPROACHED, UNDERSTOOD A ND APPRECIATED AS A HELPMATE IN THE COURSE OF THE PROCESS OF ADMI NISTRATION OF JUSTICE. PROCEDURAL PROVISIONS SHOULD BE SO CONSTRUED AS TO SUBSERVE THE COURSE OF JUSTICE AND NOT TO HINDER IT. IT IS NOW W ELL-SETTLED THAT A PROCEDURAL PROVISION, ORDINARILY, SHOULD NOT BE CON STRUED AS MANDATORY, IF THE DEFECT IN THE ACT DONE IN PURSUAN CE OF IT CAN BE CURED BY PERMITTING APPROPRIATE RECTIFICATION TO BE CARRIED OUT AT A SUBSEQUENT STAGE. PROCEDURAL LAWS ARE DEVISED AND E NACTED FOR THE PURPOSE OF ADVANCING JUSTICE. REFERENCE CAN BE MADE TO THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. HARDEODAS AGARWALLA TRUST, (1992) 198 ITR 511. IN THE PRESENT CASE, THOUGH THE APPEAL WAS FILED MANUALLY, LD. CIT(A) HAD TAKEN C OGNIZANCE OF APPEAL MEMO, WHEN REQUIRED BY LD. CIT(A) TO FILE APPEAL ELECTRONICALLY, IT WAS DULY COMPLIED WITH BY THE ASSESSEE. THEREFORE , APPEAL RELATES BACK TO THE DATE OF FILING OF APPEAL MANUALLY. THU S, THERE WAS NO DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A). THEREFORE, WE HOLD THAT LD. CIT(A) OUGHT NOT HAVE DISMISSED THE APPEAL IN LIMINE WITHOUT ITA NO.325/CHNY/2019 :- 5 -: CONSIDERING THE MERITS OF THE ASSESSMENTS. IN TH E CIRCUMSTANCES, WE REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DENOVO ADJUDICATION AFTER AFFORDING DUE OPPORTUNITY OF HEA RING TO THE APPELLANT IN ACCORDANCE WITH LAW. HENCE, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 4TH DAY OF DECEMBER, 201 9, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER - ) / CHENNAI . / DATED:4TH DECEMBER, 2019. KV $ &*01 21!* / COPY TO: 1 . '# / APPELLANT 3. ( 3* () / CIT(A) 5. 16 &*7 / DR 2. &' '# / RESPONDENT 4. ( 3* / CIT 6. 8 9) / GF