Sri Vasavi Gold & Bullion Pvt. Ltd., CHENNAI V. DCIT, CHENNAI

ITA 326/CHNY/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2042 (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: 2009-2010
• Appeal Filed On: 11-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A SUNDARARAJAN RAJ
• Keywords: Period of limitation; Right to appeal

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , , [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ] ./I.T.A. NO.326/CHNY/2019 ! / ASSESSMENT YEAR : 2009-2010. SRI VASAVI GOLD & BULLION(P) LTD, NO.137, N.S.C. BOSE ROAD. CHENNAI 600 079 VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(2) CHENNAI. [PAN AAFCS 5675R] ( / APPELLANT) ( /RESPONDENT) '# $ % / APPELLANT BY : SHRI. K. BALASUBRAMANIAN, 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) 2009-2010. 2. T HE BRIEF FACTS OF THE CASE ARE AS UNDER: ITA NO.326/CHNY/2019 :- 2 -: THE APPELLANT NAMELY SRI VASAVI GOLD & BULLION(P) L TD, IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE CO MPANIES ACT, 1956. IT IS ENGAGED IN THE BUSINESS OF TRADING I N GOLD, DIAMOND AND SILVER ORNAMENTS AND GOLD BULLION. THE RETURN OF INCOME FOR THE AY 2009-10 WAS FILED ON 30.09.2009 DISCLOSING TOTAL IN COME OF B13,76,997/-. SUBSEQUENTLY, THE ASSESSING OFFICER R EOPENED THE ASSESSMENT U/S.148 OF THE ACT. AGAINST THE SAID RET URN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE DY. CIT, CORPORATE CIRCLE-6(2), CHENNAI (HEREINAFTER CALLED AO) VIDE ORDER DATED 29.03.2016 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AT TOTAL INCOME OF RS. 51,03,579/-. WHILE DOING SO, THE AO DISALLOWED SET OFF AND CARRY FORWARD LOSS OF B32,26,332/- AND PURCHASES OF DIAMO NDS FROM M/S. NAVKAR OF B4,86,000/-. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFI CER ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) MANU ALLY ON 25.04.2016. 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. HOWEVER, ASSESSEE NEITHER FILED E-APPEAL NOR REPLIED TO THE NOTICE. HENCE, THE LD. CIT(A) DISMISSED THE APPEAL IN LIMINE. ITA NO.326/CHNY/2019 :- 3 -: 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 THE LD. CIT(A) WITHOUT AD JUDICATING THE APPEAL ON MERITS, DISMISSED THE SAME ON LIMINE WITHOUT CON SIDERING THE 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 MATTER OF RECORD THAT LD. CIT(A) HAD ACCEPTED THE A PPEAL, THE DEFECT WAS POINTED OUT ONLY IN THE YEAR 2018. THE RIGHT OF APPEAL IS AN SUBSTANTIVE RIGHT. THE FORM OF FILING OF APPEAL, PROCEDURE PRESCRIBED FALLS WITHIN THE DOMAIN OF LAW OF PROCEDURE. THE LAW OF PROCEDURE HAS TO BE APPROACHED, UNDERSTOOD AND APPRECIATED AS A H ELPMATE IN THE COURSE OF THE PROCESS OF ADMINISTRATION OF JUSTICE. PROCEDURAL PROVISIONS SHOULD BE SO CONSTRUED AS TO SUBSERVE T HE COURSE OF JUSTICE AND NOT TO HINDER IT. IT IS NOW WELL-SETTLED THAT A PROCEDURAL PROVISION, ORDINARILY, SHOULD NOT BE CONSTRUED AS MANDATORY, I F THE DEFECT IN THE ACT DONE IN PURSUANCE OF IT CAN BE CURED BY PERMITT ING APPROPRIATE ITA NO.326/CHNY/2019 :- 4 -: RECTIFICATION TO BE CARRIED OUT AT A SUBSEQUENT STA GE. PROCEDURAL LAWS ARE DEVISED AND ENACTED FOR THE PURPOSE OF ADVANCIN G JUSTICE. REFERENCE CAN BE MADE TO THE DECISION OF HONBLE CA LCUTTA HIGH COURT IN THE CASE OF CIT VS. HARDEODAS AGARWALLA TRUST, (1992) 198 ITR 5 11. IN THE PRESENT CASE, THOUGH THE APPEAL WAS FILED M ANUALLY, LD. CIT(A) HAD TAKEN COGNIZANCE OF APPEAL MEMO. THEREFORE, W E HOLD THAT LD. CIT(A) OUGHT NOT HAVE DISMISSED THE APPEAL IN LIMIN E WITHOUT 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, 20 19, 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