Navnirman Co.Op. Bank Ltd., Ahmedabad V. The Deputy Commissioner of Income Tax, Circle-5(2), Ahmedabad

ITA 3321/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5080 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 2

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 3321/AHD/2016 / ASSESSMENT YEAR: 2013-14 THE NAVNIRMAN CO-OP. BANK LTD. NAVNIRMAN BANK BHAVAN SHRIMALI SOCIETY NAVRANGPURA AHMEDABAD 380 009. PAN : AABFN 2975 L VS DCIT, CIR.5(2) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI PARIN SHAH, AR REVENUE BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING : 30/07/2018 /DATE OF PRONOUNCEMENT : 01/08/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF THE LD.CIT(A)- 5, AHMEDABAD DATED 13.10.2016 PASSED FOR THE ASSESSMENT YEAR 2013-14. 2. THE MAIN ISSUE RAISED BY THE ASSESSEE IN ITS APP EAL RELATED TO ACTION OF THE LD.CIT(A) IN TREATING THE APPEAL OF THE ASSE SSEE AS NON-EST ON THE GROUND THAT E-APPEAL FILED BY THE ASSESSEE ON 8.9.2 016 WAS BEYOND THE EXTENDED PERIOD AS AMENDED BY RULE 45 OF INCOME TAX RULES. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COOPERATIVE BANK. IT HAS FILED ITS RETURN OF INCOME ON 17.9.2013 DECLARI NG TOTAL INCOME AT RS.8,52,44,690/-. AFTER SCRUTINY ASSESSMENT, AN AS SESSMENT ORDER UNDER ITA NO.3321/AHD/2016 - 2 SECTION 143(3) CAME TO BE PASSED ON 30.12.2015 BY M AKING AN ADDITION OF RS.13,62,000/- AND RS.1,19,62,079/-. ASSESSEE PREF ERRED APPEAL BEFORE THE LD.CIT(A). 4. SUB-SECTION (2) OF SECTION 249 AUTHORISE AN ASSE SSEE TO FILE AN APPEAL WITHIN 30 DAYS FROM SERVICE OF THE ASSESSMEN T ORDER/DEMAND NOTICE. THE ASSESSEE HAS FILED ITS APPEAL BEFORE T HE LD.CIT(A) ON 03.03.2016 WHICH IS WITHIN 30 DAYS FROM THE DATE OF ASSESSMENT ORDER WHICH WAS STATED TO BE SERVED UPON THE ASSESSEE ON 16.2.2016. THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT ADJUDICATING THE ISSUE ON MERIT ON THE GROUND THAT CBDT HAS AMEN DED RULE 45 OF INCOME TAX RULES 1962 VIDE WHICH THE ASSESSEE WAS R EQUIRED TO FILE THE APPEAL FROM THE ASSESSMENT ORDER ELECTRONICALLY. T HE ASSESSEE FAILED TO TRANSMIT ITS APPEAL IN ELECTRONIC FORM WITHIN STATU TORY PERIOD. RATHER IT HAS FILED ON 8.9.2016. 5. ON DUE CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT THE LD.CIT(A) HAS NOT JUSTIFIED IN DISMISSING THE A PPEAL OF THE ASSESSEE ON SUCH TECHNICAL ISSUE WITHOUT ADJUDICATING IT ON MERIT. THE RIGHT TO FILE HAS BEEN PROVIDED IN STATUTE UNDER SECTION 249 WHIC H CAN ONLY BE TAKEN AWAY BY LEGISLATIVE AMENDMENT AND NOT IN A DELEGATE D MANNER. THE LD.CIT(A) SHOULD HAVE DECIDED THE APPEAL ON MERIT. IT HAS FILED APPEAL WITHIN DUE DATE. IT IS ALSO IMPORTANT TO NOTE THAT WHEN THE ASSESSMENT ORDER WAS PASSED AND RIGHT TO FILE APPEAL WAS AVAIL ABLE WITH THE ASSESSEE. AT THAT POINT OF TIME, CBDT CIRCULAR NOT CAME INTO EXISTENCE. THE LD.CIT(A) OUGHT TO HAVE LOOKED INTO THAT ASPECT ALSO. THE ASSESSMENT ORDER WAS PASSED ON 30.12.2015 WHEREAS T HE CBDT CIRCULAR CAME INTO EXISTENCE ON 1.3.2016. IF THE ASSESSEE H AS FILED APPEAL ON ITA NO.3321/AHD/2016 - 3 3.3.2016 ITSELF, AND THEREAFTER IMMEDIATELY ON COMI NG TO KNOW ABOUT THE ABOVE CBDT CIRCULAR ASSESSEE E-FILED ITS APPEAL ON 8.9.2016 I.E. MORE THAN ONE MONTH BEFORE PASSING OF THE IMPUGNED ORDER OF T HE LD.CIT(A) DATED 13.10.2016, THEN HOW THE LD.COMMISSIONER COULD LEVE L ALLEGATIONS AGAINST THE ASSESSEE ABOUT NON-MAINTAINABILITY OF I TS APPEAL. IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF THE ASSESSEE IS ALLOWED. ISSUES ARE SET ASIDE TO THE LD.CIT(A) WHO WILL DECIDE THE APPE AL ON MERIT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 1 ST AUGUST, 2018. SD/- SD/- (WASEEM AHMED) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER