Pasupathy Bhalchandra, Chennai V. ACIT, Non Corp Cir -15(1), Chennai

ITA 368/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6199 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 14-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARUN RAJ IRS
• Assessee Lawyers: D ANAND
• Keywords: Period of limitation; Right to appeal
• Section: 143(3)

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.368/CHNY/2019 ! / ASSESSMENT YEAR : 2013-2014. PASUPATHY BHALCHANDRA, FLAT NO.4, BAYSHORE APARTMENTS, NEW NO.17, OLD NO.9, ARUNDALE BEACH ROAD, KALAKSHETRA COLONY, BESANT NAGAR, CHENNAI 600 090. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, NCC-15(1) CHENNAI. [PAN AAEPB 1689C] ( / APPELLANT) ( /RESPONDENT) '# $ % / APPELLANT BY : SHRI. D. ANAND, ADVOCATE &' '# $ % /RESPONDENT BY : SHRI. ARUN RAJ, IRS, JCIT. ( ) $ * /DATE OF HEARING : 27-09-2019 +,! $ * /DATE OF PRONOUNCEMENT : 11-10-2019 / 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 ITA NO.368/CHNY/2019 :- 2 -: (CIT(A) FOR SHORT) DATED 24.12.2018 FOR THE ASSES SMENT YEAR (AY) 2013-2014. 2. T HE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS AN INDIVIDUAL DERIVING INCOME UNDE R THE HEADS INCOME FROM LTCG, STCG AND OTHER SOURCES. THE R ETURN OF INCOME FOR THE AY 2013-14 WAS FILED ON 31.07.2013 DISCL OSING TOTAL INCOME OF D1,49,43,490/-. AGAINST THE SAID RETURN OF INCOM E, THE ASSESSMENT AS COMPLETED BY THE ASSISTANT COMMISSIONER OF INC OME TAX, NON CORPORATE CIRCLE 15(1), CHENNAI AT TOTAL INCOME OF D1,86,60,821/- AFTER INTEREST DISALLOWANCE OF D3,66,092/- U/S.14A OF THE ACT VIDE ORDER DATED 11.03.2016 PASSED U/S. 143(3) OF THE IN COME TAX ACT, 1961 (FOR SHORT THE ACT). 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFI CER ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) MANU ALLY ON 08.04.2016. 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 04.12.201 8. SUBSEQUENTLY, ASSESSEE FILED THE APPEAL ELECTRONICALLY ON 08.12.2 018. THE LD. CIT(A) ITA NO.368/CHNY/2019 :- 3 -: CONCLUDED THAT APPEAL WAS FILED WITH DELAY OF 906 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 04.12.2018, ASSESSEE HAD FILED THE APPEAL ELECTRONI CALLY ON 08.12.2018. 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 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 ITA NO.368/CHNY/2019 :- 4 -: 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 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. ITA NO.368/CHNY/2019 :- 5 -: 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 11TH DAY OF OCTOBER, 2019, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER - ) / CHENNAI . / DATED:11TH OCTOBER, 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