TERRA KO -OPERATIVE HOUSING SOCIETY LIMITED , MUMBAI V. INCOME TAX OFFICER-21(3)(4), MUMBAI

ITA 417/MUM/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7312 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 19-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMLATHA
• Assessee Lawyers: MANOJ D MAHIMKAR
• Section: 143(3)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B. R. BASKARAN , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 417 /MUM/2018 ( / ASSESSMENT YEAR: 2013 - 14 ) TERRA CO - OPERATIVE HOUSING SOCIETY LTD. OLD SIMPLEX MILLS COMPOUND, NEAR JACOB CIRCLE, KESHAVRAO KHADYE MARG, MAHALAXMI (EAST), MUMBAI - 400011 / VS. ITO 21(3 )(4 ) ROOM NO. 206, 2 ND FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL , M UMBAI - 400012 . ./ ./ PAN NO. AABAT9818P ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI MANOJ D. MAHIMKAR, AR / RESPONDENTBY : MS. N. HEMLATHA, DR / DATE OF HEARING : 03.04.2018 / DATE OF PRONOUNCEMENT : 02/05/2018 2 I.T.A. NO. 417 /MUM/201 8 TERRA CO - OPERATIVE HOUSING SOCIETY LTD. / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 33 , MUMBAI, DATED 17 .10.17 FOR A.Y. 20 13 - 14 . 2. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSMENT IN THE ABOVE CASE FOR AY 2013 - 14 WAS COMPLETED BY ORDER U/S 143(3) R.W.S 147 OF THE I.T. ACT , 1961 DATED 0 9 .0 3 . 2016. THE APPEAL IN THE CASE WAS FILED IN MANUAL FORM ON 29.06.16, WHICH WAS DELAYED BY 72 DAYS. HOWEVER, THE FILING OF APPEALS WAS INTRODUCED FOR THE FIRST TIME UNDER RULE 45 OF I.T. RULES 1962 MANDATING COMPULSORY E - FILING OF APPEALS BEFORE APPELLATE COMMISS IONER WITH EFFECT FROM 1 ST MAR CH 20 16, SINCE AS PER ASSESSEE , HE WAS NOT AWARE AT THE TIME OF FILING ABOUT MANDATORY PROVISION OF E - FILING OF THE APPEAL. LD. CIT(A) DISMISSED THE APPEAL ON THE SOLITARY GROUND THAT THE APPEAL WAS NOT E - FILED BEFORE THE AUTHORITIES. 3 I.T.A. NO. 417 /MUM/201 8 TERRA CO - OPERATIVE HOUSING SOCIETY LTD. 3 . NOW BEFORE US LD. AR HAS CHALLENGED THE ORDER OF LD. CIT(A) IN NOT ALLOWING HEARING OF APPEAL FILED BY THE ASSESSEE MERELY ON THE BASIS OF ALLEGED DEFAULT OF NOT HAVING FILED ELECTRONICALLY. 4 . LD. AR REITERATED THE SAME ARGUMENTS AS WERE RAISED BEFORE LD. CIT(A) AND SUBMITTED EVEN THOUGH THE APPEAL WAS FILED IN PAPER FORM AND UN DER THE RELEVANT PROVISIONS OF I.T. ACT 1 961 , BUT THE LD. CIT(A) HAS ERRED IN NOT ALLOWING HEARING OF APPEAL FILED BY THE ASSESSEE MERELY ON THE BASIS OF ALLEGED DEFAULT OF NOT HAVING FILED ELE CTRONICALLY. LD. AR FURTHER SUBMITTED THAT LD. CIT(A) OUGHT TO HAVE TAKEN INTO ACCOUNT THAT THE ALLEGED COMPLIANCE DEFAULTS WERE OF A TECHNICAL NATURE AND BEING INTRODUCED FOR THE FIRST TIME IN THE STATUTE BOOK S, OUGHT TO HAVE CONSIDERED LEGALLY AND HEARD THE APPEAL ON MERITS. IT WAS FURTHER SUBMITTED THAT LD. CIT(A) HAS ERRED IN DENYING AN OPPORTUNITY OF APPEAL TO DESERVING APPELLANT AND THUS RESULTED IN DENIAL OF OPPORTUNITY OF JUSTICE IN THE DESERVING CASE. 4 I.T.A. NO. 417 /MUM/201 8 TERRA CO - OPERATIVE HOUSING SOCIETY LTD. 5 . ON THE OTHER HAN D LD. DR APPEARING ON BEHAL F OF THE DEPARTMENT SUPPORTED THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 6 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY THE REVENUE AUTHORITIES. FROM THE RECORDS WE NOTICED THAT ELECTRONICALLY FILING OF THE APPEALS WAS INT RODUCED FOR THE FIRST TIME VIDE RULE 45 OF I.T. RULES 1962 , MANDATING COMPULSORY E - FILING OF APPEALS BEFORE APPELLATE COMMISSIONER WITH EFFECT FROM 1 ST MARCH 2016. WE NOTICED THAT IN THIS RESPECT, THE RE IS NO CORRESPONDING AMENDMENT IN ANY OF THE PROVISIONS OF THE SUBSTANTIVE LAW I.E I.T. ACT, 1961 . AS PER THE FACTS OF THE PRESENT CASE , THE ASSESSMENT IN TH E ABOVE CASE WAS COMPLETED U /S 143 (3) R.W. SECTION147 OF THE I.T. A CT 1961 VIDE ORDER DATED 9 TH MARCH 2016 . H OWEVER THE ASSESSEE HAS FILED APPEAL BEFORE LD. CIT (A) IN PAPER FORM AS PRESCRIBED UNDER THE PROVISIONS OF I.T. ACT 1961. BUT THE SAME WAS DISMISSED BY LD. CIT(A) BY HOLDING THAT ASSESSEE HAD NOT FILED APPEAL THROUGH ELECTRIC FORM, WHICH IS M ANDATORY AS PER I.T. RULES 1962. 5 I.T.A. NO. 417 /MUM/201 8 TERRA CO - OPERATIVE HOUSING SOCIETY LTD. AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION, WE FIND THAT H ON BLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB VS. SHYAMALA L MURARI AND OTHERS REPORTED IN AI R 1976 (SC) 1177 HAS CATEGORICALLY HELD THAT COURTS SHO ULD NOT GO STRICTLY BY THE RULEBOOK TO DENY JUSTICE TO THE DESERVING LITIGANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. IT HAS BEEN REITERATED BY THE H ON BLE SUPREME COURT THAT ALL THE RULES OF PROCEDURE ARE HANDMA I D OF JUSTICE. THE LANGUAGE EMPLOYED BY THE DRAF TSMAN OF PROCEDURAL LAW MAY BE LIBERAL OR STRINGENT, BUT THE FACT REMAINS THAT THE OBJECT OF PRESCRIBING PROCEDURE IS TO ADVANCE THE CAUSE OF JUSTICE. THE HO N BLE APEX C OURT HAS SAID IN AN ADVERSARIAL SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY OF PARTICIPATING IN THE PROCESS OF JUSTICE DISPENSATION. THE H ON BLE SUPREME COURT IN ITS JUDGEMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF R ANI KUSUM VRS. KANCHAN DEVI, REITERATED THAT, A PROCEDURAL LAW SHOULD NOT ORDINARILY BE CONSTRUED AS MANDATORY, AS IT IS ALWAYS SUBSERVIENT TO AND IS IN AID OF JUSTIC E. ANY INTERPRETATION, 6 I.T.A. NO. 417 /MUM/201 8 TERRA CO - OPERATIVE HOUSING SOCIETY LTD. WHICH EL UDES OR FRUSTRATES THE RECIPIENT OF JUSTICE, IS NOT TO BE FOLLOWED. FROM THE FACTS OF THE PRESENT CASE , WE GATHERED THAT THE ASSESSEE HAD ALREADY FILED THE APPEAL IN PAPER FORM, HOWEVER ONLY THE E - FILING OF APPEAL HAS NOT BEEN DONE BY THE ASSESSEE AND ACCORDING TO US , THE SAME IS ONLY A TECHNICAL CONSIDERATION. IN THIS RESPECT , WE RELY UPON THE JUDGEMENT OF HONBLE SUPREME COURT, WHEREIN THE HONBLE SU PREME COURT HAS REITERATED THAT IF IN A GIVEN CIRCUMSTANCES, THE TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER , THE N IN THAT EVENTUALITY THE CAUSE O F SUBSTANTIAL JUSTICE DESERVES TO BE P REFERRED AND CANNOT BE OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONSIDERATION S . SINCE IN THE PRESENT CASE , THERE IS NO AMEND MENT IN ANY OF THE PROVISIONS OF THE SUBSTANTIVE LAW I.E. I.T. ACT 1961 FOR E - FILING OF APP EAL. THE APPEAL IN THE PAPER FORM WAS ALREADY WITH LD. CIT(A), THEREFORE IN THAT EVENTUALITY THE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL SOLELY ON THE GROUND THAT THE 7 I.T.A. NO. 417 /MUM/201 8 TERRA CO - OPERATIVE HOUSING SOCIETY LTD. ASSESSEE HAS NOT FILED THE APPEAL ELECTRONICALLY BEFORE THE APPELLATE COMMISSIO NER. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AS WELL AS THE CASE LAWS DISCUSSED AND RELIED UPON ABOVE, WE ARE O F THE CONSIDERED VIEW THAT THE CAUSE OF JUSTICE WOULD BE SERVED IN CASE WE SET ASIDE THE ORDERS OF LD. CIT(A) & ALLOW THE APPEAL. WHILE SEEKING THE COMPLIANCE, WE DIRECT THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. IN CASE, THE DIRECTIONS ARE FOLLOWED THEN IN THAT EVENTUALITY, THE DELAY IN E - FILING THE APPEAL SHALL STAND CONDONED. LD. CIT(A) IS FURTHER DIRECTED TO CONSIDER THE APPEAL FILED BY THE ASSESSEE ON MERITS BY PASSING A SPEAKING ORDER. RESULTANTLY, WE ALLOW THE GROUND OF APPEAL RAISED BY THE ASSESSEE 7 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND MAY , 2018 . SD/ - SD/ - ( B. R. BASKARAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 02 . 0 5 .201 8 SR.PS . DHANANJAY 8 I.T.A. NO. 417 /MUM/201 8 TERRA CO - OPERATIVE HOUSING SOCIETY LTD. / 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 F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI