KAPOOR GLASS INDIA P.LTD, MUMBAI V. DCIT (TDS) , CPC GHAZIABAD, GHAZIABAD

ITA 3676/MUM/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0903 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: misc
• Appeal Filed On: 19-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR SINGH LD
• Assessee Lawyers: SHEKHAR GUPTA LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 63

Judgement Text

KAPOOR GLASS (INDIA) PVT.LTD ASSESSMENT YEARS-2015-16 & 2016-17 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE SHRI MANOJ KUMAR AGGARWAL, AM AND SHRI RAVISH SOOD, JM 1. ./I.T.A. NO.3676/MUM/2017 [AY 2015-16] 2. ./I.T.A. NO.3677/MUM/2017 [AY 2016-17] 3. ./I.T.A. NO.3764/MUM/2017 [AY 2015-16] 4. ./I.T.A. NO.3766/MUM/2017 [AY 2016-17] KAP OOR GLASS(INDIA) PRIVATE LTD. [EARLIER KNOWN AS DINSHI AMPOULE MAKERS PVT. LTD.] A-37, KAPOOR HOUSE ROAD NO.2, MIDC ANDHERI (E), MUMBAI-400 093 / VS. DEPUTY COMMISSIONER OF INCOME TAX (TDS) CENTRALIZED PROCESSING CELL AAYKAR BHAVAN SECTOR-3, VAISHALI, GHAZIABAD UTTAR PRADESH-201 010 PAN /TAN OF DINSHI AMPOULE MAKERS PVT. LTD. : AAACD - 1725 - E/ MUMD - 09316 - G PAN/TAN OF KAPOOR GLASS (INDIA) PVT LTD.) : AACCK-0778-Q / MUMK-08089-E ( /APPELLANT ) : ( !' / RESPONDENT ) ASSESSEE BY : SHEKHAR GUPTA, LD. AR REVENUE BY : MANOJ KUMAR SINGH, LD. SR. DR / DATE OF HEARING : 17/09/2018 / DATE OF PRONOUNCEMENT : 05/10/2018 KAPOOR GLASS (INDIA) PVT.LTD ASSESSMENT YEARS-2015-16 & 2016-17 2 / O R D E R PER BENCH 1.1 THE COMMON GRIEVANCE OF THE ASSESSEE IN ALL THE ABO VE APPEALS IS THAT THE LD. FIRST APPELLATE AUTHORITY HAS DISMISSE D THE ASSESSEES APPEAL IN LIMINE ON TECHNICAL GROUND SINCE THE APPEALS BEFORE LD. FI RST APPELLATE AUTHORITY WAS FILED MANUALLY IN PAPER FORM, WHICH A S PER THE EXTANT RULE, WAS REQUIRED TO BE E-FILED IN THE PRESCRIBED MANNER. THE DATE OF ALL THE FOUR IMPUGNED ORDERS IS 29/03/2017 WHICH HAS BEEN P ASSED BY SAME APPELLATE AUTHORITY AND THE APPELLATE ORDERS ARE SI MILARLY WORDED. SINCE MATERIAL FACTS & CIRCUMSTANCES OF ALL THE APPEALS A RE PARI-MATERIA, WE TAKE UP ITA NO. 3764/MUM/2017 FOR AY 2015-16 AS THE LEAD CASE FOR ADJUDICATION. 1.2 AS EVIDENT FROM THE IMPUGNED ORDER FOR AY 2015- 16, APPEAL NOS.CIT(A)-59/IT-168 TO 177/ITO(TDS)-1(2)(1)/2015-1 6 DATED 29/03/2017 , WHICH IS SUBJECT MATTER OF ITA NO.3764/MUM/2017, THE APPEAL HAS BEEN DISMISSED BY FIRST APPELLATE AUTHOR ITY BY MAKING FOLLOWING OBSERVATIONS: - 1.2 IT WAS NOTED THAT THE INSTANT APPEAL WAS MANUAL LY FILED IN THIS OFFICE ON 01/03/2016, I.E. IN PAPER FORM. ACCORDINGLY, VIDE L ETTER DATED FEBRUARY 08, 2017, THE APPELLANT WAS GIVEN AN OPPORTUNITY TO EXPLAIN AS TO WHY THE MANUALLY FILED APPEAL SHOULD NOT BE TREATED AS INVALID IN LIGHT OF NOTIFI CATION NO. S.O.637(E) DATED MARCH 01, 2016, OF THE CBDT, NEW DELHI, ISSUED IN EXERCIS E OF THE POWERS CONFERRED BY SECTION 249(1), READ WITH SECTION 295 OF THE ACT. T HE INCOME-TAX (3 RD AMENDMENT) RULES, 2016, AMENDED RULE 45 OF THE INCOME-TAX RULE S, 1962, MANDATING COMPULSORY ELECTRONIC FILING OF APPEALS BEFORE AN A PPELLATE COMMISSIONER WITH EFFECT FROM MARCH,01,2016, FOR ALL PERSONS WHO ARE REQUIRE D TO FURNISH THEIR RETURN OF INCOME ELECTRONICALLY. THIS IS DEMONSTRATED BY THE EXPLICIT LANGUAGE OF THE AFOREMENTIONED NOTIFICATION TO THE EFFECT THAT SUCH AN APPEAL SHALL BE MADE ELECTRONICALLY IN FORM NO. 35 UNDER A DIGITAL SIGNA TURE/ELECTRONIC VERIFICATION CODE. HOWEVER, DESPITE SUCCESSFUL SERVICE OF THE SAID LET TER ON 10.02.2017, THERE HAS BEEN NO RESPONSE. RESULTANTLY, THE MANUAL APPEAL FI LED IS NOT MAINTAINABLE AT THE THRESHOLD. THUS, THERE WOULD BE NO CAUSE TO EXAMINE ANY OTHER ASPECT OF THE KAPOOR GLASS (INDIA) PVT.LTD ASSESSMENT YEARS-2015-16 & 2016-17 3 APPEAL, INCLUDING ANY DEFICIENCY IN DOCUMENTS OR TH E MERITS OF THE CASE. IN THE RESULT, THE APPEAL IS DISMISSED IN LIMINE. 2.0 APPEAL NO. : CIT(A)-59/IT-169/ITO(TDS)-1(2)(1) /2015-16 3.0 APPEAL NO. : CIT(A)-59/IT-170/ITO(TDS)-1(2)(1)/ 2015-16 4.0 APPEAL NO. : CIT(A)-59/IT-171/ITO(TDS)-1(2)(1)/ 2015-16 5.0 APPEAL NO. : CIT(A)-59/IT-172/ITO(TDS)-1(2)(1)/ 2015-16 6.0 APPEAL NO. : CIT(A)-59/IT-173/ITO(TDS)-1(2)(1)/ 2015-16 7.0 APPEAL NO. : CIT(A)-59/IT-174/ITO(TDS)-1(2)(1)/ 2015-16 8.0 APPEAL NO. : CIT(A)-59/IT-175/ITO(TDS)-1(2)(1)/ 2015-16 9.0 APPEAL NO. : CIT(A)-59/IT-176/ITO(TDS)-1(2)(1)/ 2015-16 10.0 APPEAL NO. : CIT(A)-59/IT-177/ITO(TDS)-1(2)(1) /2015-16 ALL THE ABOVE NINE APPEALS WERE ALSO FILED MANUALLY ON MARCH 01, 2016, HAVING IDENTICAL GROUND OF APPEAL EXCEPT FOR THE AMOUNT IM PUGNED. ACCORDINGLY, FOR THE REASON MENTIONED IN APPEAL NO. IT-168/2015-16 SUPRA , THESE APPEALS ARE ALSO INVALID AND ARE DISMISSED IN LIMINE. CONSEQUENT TO THIS, THE OTHER ASPECTS DO NOT SURVIVE FOR CONSIDERATION. 11.0 BEFORE PARTING, THE APPELLANT IS ADVISED TO E XAMINE THE PAN/TAN MENTIONED BY IT WHICH MAY REQUIRE CORRECTION. 12.0 IN THE RESULT, THE TEN APPEALS ARE NOT ADMITTE D, BEING INVALID. FOR STATISTICAL PURPOSES, HOWEVER, THEY ARE TREATED AS DISMISSED. AGGRIEVED AS AFORESAID, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 2. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [ AR], SHRI SHEKHAR GUPTA, HAS PLEADED FOR RESTORATION OF APPEALS BY PLACING RELIANCE ON THE RECENT DECISION OF THIS TRIBUNAL RE NDERED IN ALL INDIA FEDERATION OF TAX PETITIONERS VS. ITO [ITA NO. 7134 /MUM/2017 DATED 04/05/2018]. HOWEVER, AT THE SAME TIME, THE LD. AR ALSO SUBMITTE D THAT THE APPEALS FILED MANUALLY IN PAPER-FORM BEFORE LD. FIRST APPELLATE AUTHORITY WERE FILED WITH A DELAY, THE CONDONATION OF WHICH WAS SOUGHT BY THE ASSESSEE AND THE SAME HAS NOT BEEN CONSIDERED B Y LD. CIT(A) IN VIEW OF DISMISSAL OF APPEALS ON TECHNICAL GROUNDS. THE LD. DR, SHRI MANOJ KUMAR SINGH OPPOSED THE SAME BY SUBMITTING THAT THE EXTANT RULES PROVIDED FOR FILING OF APPEALS IN THE PRESCRI BED MANNER WHICH WAS MANDATORY. IT WAS FURTHER SUBMITTED THAT THE CITED DECISION OF THE TRIBUNAL KAPOOR GLASS (INDIA) PVT.LTD ASSESSMENT YEARS-2015-16 & 2016-17 4 ADDRESSED A SITUATION WHERE-IN THE MANUAL RETURN, I TSELF, WAS FILED WITHIN PRESCRIBED TIME LIMIT, WHICH IS NOT THE CASE HERE. 3. AT THE OUTSET, IT IS NOTED THAT THE NAME OF THE ERSTWHILE ASSESSEE NAMELY DINSHI AMPOULE MAKERS PRIVATE LIMITED HAS BEEN CHANGED TO KAPOOR GLASS (INDIA) PRIVATE LIMITED VIDE FRESH CERTIFICATE OF INCORPORATION PURSUANT TO CHANGE OF NAME DATED 23/1 0/2015 ISSUED BY THE REGISTRAR OF COMPANIES, MUMBAI, A COPY OF WHICH IS ON RECORD. THE CHANGE HAS BEEN REFLECTED BY THE ASSESSEE IN REVISE D FORM NO. 36, WHICH IS IN ORDER. OUR ADJUDICATION ON THE ISSUES I S GIVEN IN SUCCEEDING PARAGRAPHS. 4.1 WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS A ND PERUSED RELEVANT MATERIAL ON RECORD. THE ASSESSEE IS AGGRIEVED BY LE VY OF LATE FILING FEES U/S 234E ON ACCOUNT OF DELAY IN FILING OF TDS RETUR NS FOR VARIOUS QUARTERS OF AY 2015-16. THE FEES HAS BEEN LEVIED IN ORDERS P ASSED ON VARIOUS DATES U/S 200A BY CPC(TDS), VAISHALI, GHAZIABAD, UP 201 010 [PAN JURISDICTION : ITO(TDS)-1(2)(1), MUMBAI]. 4.2 AGITATING THE LEVY OF LATE FILING FEES, THE ASS ESSEE PREFERRED APPEAL BEFORE LD. CIT(A) ON 01/03/2016 MANUALLY IN PAPER-F ORM. HOWEVER, THE SAID APPEAL IN TERMS OF CBDT NOTIFICATION NO. SO 63 7(E) [NO. 11/2016 (F. NO. 149/150/2015-TPL)], DATED 1-3-2016 , WAS REQUIRED TO FILE DIGITALLY IN ELECTRONIC FORM. THE FAILURE TO FILE THE SAME IN THE PRESCRIBED FORM RESULTED INTO DISMISSAL OF APPEAL IN LIMINE. THE LD. AR, DRAWING STRENGTH FROM THE CITED ORDER OF THE TRIBUNAL, HAS SOUGHT RE STORATION OF THE APPEALS TO LD. CIT(A). THE LD. AR HAS ALSO SUBMITTE D THAT IT CAN DEMONSTRATE SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEALS, IF PROVIDED KAPOOR GLASS (INDIA) PVT.LTD ASSESSMENT YEARS-2015-16 & 2016-17 5 WITH ANOTHER OPPORTUNITY OF BEING HEARD SINCE THE S AME HAS NOT BEEN DELVED UPON BY LD. CIT(A). 4.3 AFTER DUE CONSIDERATION OF FACTUAL MATRIX AND K EEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, WE ARE OF THE CONSID ERED OPINION THAT MERE TECHNICAL LAPSES COULD NOT DEPRIVE THE ASSESSEE TO SEEK JUSTICE IN DESERVING CASES. THEREFORE, IN TERMS OF THE CITED J UDGMENT OF THE TRIBUNAL, THE ASSESSEE IS DIRECTED TO E-FILE THE APPEAL IN THE PRESCRIBED MANNER BEFORE LD. FIRST APPELLATE AUTHORITY WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. THEREAFTER, THE LD. FIRST APPELLATE AUTHORITY IS DIRECTED TO ADJUDICATE THE PRELIMINARY ISSUE OF CON DONATION OF DELAY AND IF THE SAME IS FOUND TO BE CONVINCING, DEAL WITH THE M ERITS OF THE CASE AS AGITATED BY THE ASSESSEE. NEEDLESS TO ADD THAT, FAI LURE TO E-FILE THE APPEALS AS DIRECTED BY US HERE-IN-ABOVE SHALL RESUL T INTO CONFIRMATION OF STAND OF LD. CIT(A). 4.4 THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPO SES. 5. SIMILAR ARE THE FACTS AND CIRCUMSTANCES OF OTHER THREE APPEALS BEFORE US AND THEREFORE, THE SAME ARE ADJUDICATED O N SIMILAR LINES. ACCORDINGLY, ALL THESE APPEALS ALSO STAND ALLOWED F OR STATISTICAL PURPOSES. 6. FINALLY, ALL APPEALS STAND ALLOWED FOR STATISTIC AL PURPOSES IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH OCTOBER, 2018. SD/- SD/- (RAVISH SOOD) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED 05.10.2018 SR.PS:-THIRUMALESH KAPOOR GLASS (INDIA) PVT.LTD ASSESSMENT YEARS-2015-16 & 2016-17 6 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. ) ( ) / THE CIT(A) 4. ) / CIT CONCERNED 5. *+!$, , , , / DR, ITAT, MUMBAI 6. +-./ / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI