METCALFE & HODGKINSON INSURANCE SURVEYORS AND LOSS ASSESSORS PVT. LTD., MUMBAI V. ITO 2(2)(3), MUMBAI

ITA 3757/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4217 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 29-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 143(1); 143(2); 13; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE M. BALAGANESH , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 3757 /MUM/201 8 ( / ASSESSMENT YEAR: 20 13 - 14 ) METCALFE & HODGKINSON INSURANCE SURVEYORS AND LOSS ASSESSORS PVT. LTD. MACKINNON MACKENZIE BLDG., 44, SHOORJI VALLABHDAS MARG, BALLARD ESTATE, MUMBAI - 400001. / VS. ITO 2(2)(3) AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400020. ./ ./ PAN/GIR NO. : AAACM2748Q ( / AP PELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 05 / 10 /2020 / DATE OF PRONOUNCEMENT : 28 /10 /2020 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 28.03.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 5 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y . 2013 - 14 2 . TH E ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THAT THE CIT(APPEALS) HAS ERRED BY DISMISSING THE APPEAL ON THE GROUND THAT THE APPEAL HAS BEEN FILED IN MANUAL FORM WITHOUT APPRECIATING THE FACT THAT THE APPEAL COULD NOT BE FILED ELECTRONICALLY DUE TO SYSTEM FAULT AND THEREFORE THE PETITIONERS PRAY THAT THE ORDER BE SET ASIDE AND APPEAL BE RESTORED. ASSESSEE BY : NONE REVENUE BY: SHRI O. P. MEENA ( SR. A R) ITA NO. 3757 / M/201 8 A.Y.2013 - 14 2 2. THAT THE CIT (APPEALS) HAS ERRED BY DISMISSING THE APPEAL WITHOUT APPRECIATING THE FACT THAT THE APPEAL WAS FILED MANUALLY ON 25.4.2016 AND COULD NOT BE FILED ELECTRONICALLY DUE TO SYSTEM FAULT AND THE CIRCULAR NO.20 WAS ISSUED MUCH LATER ON 26.5.2016 EXTENDING THE DATE TO 15.6.2016 FOR ELECTRONIC FILING OF APPEAL AND THEREFORE THE PETITIONERS BEING UNDER THE BONA FIDE IMPRESSION THAT ONCE THE A PPEAL IN MANUAL FORM IS ACCEPTED, THERE IS NO REQUIREMENT TO FILE THE APPEAL ONCE AGAIN IN ELECTRONIC FORM, PRAY THAT THE ORDER BE SET ASIDE AND THE APPEAL BE RESTORED. 3. THAT THE CIT (APPEALS) HAS ERRED BY DISMISSING THE APPEAL WITHOUT GIVING AN OPP ORTUNITY OF HEARING AND HAD THE OPPORTUNITY BEEN GIVEN, THE APPEAL WOULD HAVE BEEN FILED ELECTRONICALLY AND THEREFORE THE PETITIONERS PRAY THAT NON - FILING OF APPEAL ELECTRONICALLY BEING ONLY A TECHNICAL ISSUE AND THE APPEAL HAVING BEEN FILED IN TIME, T HE PETITIONERS PRAY THAT THE ORDER BESET ASIDE AND THE APPEAL BE RESTORED. 4. THAT THE CIT (APPEALS) HAS ERRED BY DISMISSING THE APPEAL ON THE ASSUMPTION THAT THE CHARTERED ACCOUNTANT WAS NOT AWARE OF THE RULES, HOWEVER, ADMITTING THE FACT WITHOUT ACCE PTING THE SAME AS THE PORTAL WAS NOT ACCEPTING DIGITAL SIGNATURE AND THE ASSESSEE HAVING FILED THE APPEAL THROUGH THE OFFICES OF CHARTERED ACCOUNTANTS WELL WITHIN TIME, A SERIOUS AND GRAVE INJUSTICE WOULD BE CAUSED FOR NO FAULT OF THE ASSESSEE AND THER EFORE THE PETITIONERS PRAY THAT THE ORDER BE SET ASIDE AND APPEAL BE RESTORED. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO ONE ANOTHER AND IN THE ALTERNATIVE. YOUR PETITIONERS CRAVE LEAVE TO ADD, ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL A T OR BEFORE THE TIME OF FINAL HEARING OF APPEAL. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29 . 09 .20 1 3 DECLARING TO TAL INCOME TO THE TUNE OF RS .91,09,890 / - . THEREAFTER, THE RETURN WAS PROCESSED U/S 143(1) OF THE I. T. ACT, 1961. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. THE NOTICE U/S 143(2) OF THE ACT DATED 03.09.2014 WAS ISSUED AND SERVED UPON THE ASSESSEE AND NOTICE U/S 142(1) OF THE ACT DATED 15.07.2015 & 31.12.2015 WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF ITA NO. 3757 / M/201 8 A.Y.2013 - 14 3 MARINE SURVEY, COMMON SURVEY OF BUYERS AND SELLERS FOR QUANTITY AND QUALITY, SUPERVISION OF LIFTING, DISCHARGE AND DELIVERY OF OVER DIMENSIONED CARGO/HEAVY LIFT INCLUDING INSPECTION AND MODIFICATION OF BARGES TO TRANSPORT SUCH CARGOES AND ALSO UNDERTAKES ALL TYPES OF CONTAINER SURVEYS, SUPERVISION OF SALVAGING AND RECONSTITUTION OF CARGO AFTER DAMAGE TO CARGO DRY & LIQUID BULK CARGO SURVEYS, LPG/LNG & AMMONIA GAS SURVEYS IN TANKERS. ON VERIFICATION, IT WAS NOTICE D THAT THE ASSESSEE HAD DEDUCTED THE PF AMOUNT IN SUM OF RS.22,31,398/ - AND PAID IN SUM OF RS.687065/ - WITH THE DUE DATE OF 15 TH OF THE NEXT MONTH. HENCE BALANCE IN SUM OF RS.1544333/ - WAS ADDED TO THE INCOME OF THE ASSESSEE. ASSESSEE HAD ALSO DEBITED THE INTEREST IN SUM OF RS.85611/ - WHICH WAS ALSO DISALLOWED AND THE TOTAL DISALLOWANCE ON THIS HEAD WAS TO THE TUNE OF RS.16,29,944/ - . THE ASSESSEE HAD ALSO DEBITED THE INTEREST ON SERVICE TAX OF RS.135532/ - WHICH WAS ALSO DISALLOWED U/S 37 OF THE ACT. T HE CLA IM OF THE DIWALI BONUS IN SUM OF RS.49,807/ - AND DONATION IN SUM OF RS.1,050/ - AND CLAIM OF L OSS OF CASH BY THEFT IN SUM OF RS.40,000/ - WERE ALSO DISALLOWED . THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.1,08,30,170/ - . FEELING AGGRIEVED, THE ASSESSEE AN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE ORDER OF THE AO , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 5 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE DEPARTMENT AND HAS GONE THROUGH THE CASE CA REFULLY . IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT APPEAR BEFORE US. ON APPRAISAL OF THE ORDER PASSED BY THE CIT(A), WE NOTICED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, ITA NO. 3757 / M/201 8 A.Y.2013 - 14 4 THEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE IN THE INTEREST OF JUSTICE. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFOR E THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. 6 . FOR THIS PROPOSITION WE PLACED RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 7 . THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON ALL THE ISSUES AND RESTORED THE MATTER BEFORE THE CIT(A) TO DEC IDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 28 / 10 / 2020 SD/ - SD / - ( M. BALAGANESH ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 28 /10 / 2020 VIJAY PAL SINGH/SR. PS ITA NO. 3757 / M/201 8 A.Y.2013 - 14 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TR UE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI