ADMINISTRATOR OF THE ESTAE OF LATE E.F. DINSHAW, MUMBAI V. ITO (IT) 2(1)(1), MUMBAI

ITA 3827/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7000 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 31-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VARMA
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENC H MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMB ER ITA NO.3827/MUM/2018 ( ASSESSMENT YEAR :2015-16 ) ADMINISTRATOR OF THE ESTATE OF LATE EDULJI FRAMROZE DINSHAW 412, CHURCH GATE CHAMBERS 5, NEW MARINE LINES MUMBAI-400 020 VS. ITO (IT)-2(1)(1) ROOM NO.114, 1 ST FLOOR SCINDIA HOUSE BALLARD ESTATE MUMBAI-400 038 PAN/GIR NO.AAEPD8394A APPELLANT ) .. RESPONDENT ) ASSESSEE BY NONE REVENUE BY ANADI VARMA DATE OF HEARING 2 7 /06/2019 DATE OF PRONOUNCEME NT 31 / 0 7 /201 9 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER OF THE LD CIT(A)-56, MUMBAI, DATED 19/03/2018 AND IT PERTAINS TO ASSESSMENT YEAR-2015-16. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1) FOR THAT ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE, THE CIT(A) WAS UNJUSTIFIED IN LAW AND ON FACTS IN DISMISSING THE A PPEAL ON THE GROUND THAT THERE WAS UN-CONDONABLE TECHNICAL DEFEC T OF FILING OF THE APPEAL MANUALLY INSTEAD OF ELECTRONICALLY. 2) FOR THAT ON THE FACTS AND IN. THE CIRCUMST ANCES OF THE CASE, THE CIT (A) OUGHT NOT TO HAVE DECLINED TO ADJUDICATE THE AP PEAL FOR THE ALLEGED TECHNICAL DEFECT AT THE THRESHOLD STAGE WITHOUT GIV ING THE APPELLANT OPPORTUNITY OF HEARING AND WITHOUT GRANTING THE APP ELLANT OPPORTUNITY OF REMOVING THE ALLEGED TECHNICAL DEFECT IN FILING OF THE APPEAL. 3) FOR THAT ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE, THE CIT (A) MAY KINDLY BE DIRECTED TO ADMIT THE APPEAL SINC E THE ALLEGED TECHNICAL ITA NO.3827/MUM/2018 ADMINISTRATOR OF THE ESTATE OF LATE E.F.DINSHAW 2 DEFECT OF NON FILING OF APPEAL ELECTRONICALLY HAS S INCE BEEN REMEDIED BY THE APPELLANT ON 5 TH APRIL 2018 BY E-FILING THE APPEAL. 4) FOR THAT ON THE FACTS AND IN. THE CIRCUMSTANCE S OF THE CASE, THE CIT (A)'S ORDER DATED 19.03-2018 BE SET ASIDE AND/OR CA NCELLED AND THE CIT (A) BE DIRECTED TO ADMIT THE APPEAL FILED MANUALLY AS WELL AS ELECTRONICALLY ON 5 TH APRIL 2018 AND BE FURTHER DIRECTED TO ADJUDICATE T HE APPEAL ON MERITS. 5) FOR THAT THE APPELLANT CRAVES LEAVE TO SUBMIT A DDITIONAL GROUNDS AND/OR AMEND OR ALTER THE GROUNDS ALREADY TAKEN EIT HER AT THE TIME OF HEARING OF THE APPEAL OR BEFORE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A NON- RESIDENT, INDIVIDUAL DERIVES INCOME FROM CAPITAL G AIN AND INCOME FROM OTHER SOURCES, FILED ITS RETURN OF INCOME FOR AY 2015-16 ON 28/08/2015, DECLARING TOTAL INCOME AT RS. 1,49,19,7 80/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT HAS BE EN COMPLETED U/S 143(3) OF THE I.T.ACT, 1961 ON 29/12/2017, DETE RMINING THE TOTAL INCOME AT RS. 21,98,52,980/- BY MAKING VARIOUS ADD ITIONS INCLUDING 12% SHARE OF GROSS RECEIPTS FROM M/S FERANI HOTELS PVT.LTD. THE ASSESEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A) AND SUCH APPEAL HAS BEEN FILED MANUALLY, EVEN THOUGH E-FILIN G OF APPEAL IS MANDATORY AS PER AMENDED RULES . THEREFORE, THE CIT (A) DISMISSED, APPEAL FILED BY THE ASSESSEE FOR TECHNICAL DEFECT. AGGRIEVED, BY THE CIT(A) ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 4. NONE APPEARED FOR THE ASSESSEE, WE HAVE HEARD LD . DR AND PERUSED MATERIAL AVAILABLE ON RECORD. THE FACTS WIT H REGARD TO FILING OF APPEAL WITHIN THE TIME PROVIDED UNDER THE ACT, I N MANUAL FORM IS ITA NO.3827/MUM/2018 ADMINISTRATOR OF THE ESTATE OF LATE E.F.DINSHAW 3 NOT DISPUTED BY THE CIT(A). THE LD.CIT(A) HAS DISMI SSED APPEAL, FILED BY THE ASSESSEE FOR NOT FILING APPEAL IN ELE CTRONIC FORM AS PER AMENDED RULE 45 WHICH CAME INTO EFFECT FROM 01/03/2 016. NO DOUBT, WHEN LAW IS VERY CLEAR, IN RESPECT OF FILING OF APPEAL IN ELECTRONIC FORM WITH EFFECT FROM CERTAIN PERIOD, TH E TAXPAYER IS DUTY BOUND TO FILE SUCH APPEALS IN PRESCRIBED FORM WITHO UT ANY DEVIATION. BUT, DISMISSAL OF APPEAL FOR NON FILING OF APPEAL I N PRESCRIBED FORM WITHOUT DISCUSSING THE ISSUES ON MERIT CERTAINLY IN FRINGES, THE RIGHT OF THE ASSESSEE, WHEN THE ASSESSEE HAS EXPLAINED REASO NS FOR NON- FILING OF APPEALS IN PRESCRIBED FORMAT AND ALSO SUC H TECHNICAL DEFECT HAS BEEN REMOVED BY FILING THE APPEAL IN PRESCRIBED FORMAT BEFORE THIS AUTHORITIES. FURTHER, THE AMENDED RULES WHICH CAME INTO EFFECT FROM 01/03/2016 MAY NOT BE IN THE KNOWLEDGE OF TAX PAYERS, AND FOR THAT REASON, IT IS INCORRECT TO FURNISH TAX PAYERS BY DISMISSING THEIR APPEALS. THEREFORE, WE ARE OF THE CONSIDERED VIEW T HAT THE LD.CIT(A) WAS ERRED IN DISMISSAL OF APPEAL WITHOUT DISCUSSING THE ISSUES ON MERITS FOR NON FILING OF APPEAL IN ELECTRONIC FORM AT. HENCE, WE SET ASIDE THE APPEAL TO THE FILE OF THE LD. CIT(A) AND DIRECT HIM TO INFORM THE ASSESSEE TO RECTIFY THE DEFECTS IN FILING OF APPEAL, IF NOT DONE SO FAR AND ALSO TO DECIDE THE ISSUES INVOLVED IN THE A PPEAL ON MERITS. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSE IS AL LOWED FOR STATISTICAL PURPOSE. ITA NO.3827/MUM/2018 ADMINISTRATOR OF THE ESTATE OF LATE E.F.DINSHAW 4 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 /07/2019 SD/- (SAKTIJIT DEY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 31 /07/2019 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//