Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 5361 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 4 month(s) 11 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-05-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2008-2009
Appeal Filed On
19-01-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE HONBLE JUSTICE(R) SHRI P.P.BHATT, PRESIDENT AND G.S. PANNU, VICE PRESIDENT ITA NO. 425/MUM/2018 M/S. ASTERIX REINFORCED LIMITED (FORMERLY KNOWN AS BOMBAY HIGHPOLYMER CHEMICAL PRODUCTS LIMITED AND ORSON PETROCHEMICAL PVT LTD. 8, PREMSON SHOPPING CENTRE, TAHIRA COMPOUND, CAVES ROAD, JOGESWARI (E), MUMBAI. : (A.Y : 2008-2009) INCOME TAX OFFICER -10(3)(2), MUMBAI PAN NO.AAACO 9377 P (APPELLANT) VS . (RESPONDENT) APPELLANT BY : SHRI KHUSHAL SHAH, AR RESPONDENT BY : MS HARKAMAL SOHI, DR DATE OF HEARING : 04/04/2019 DATE OF PRONOUNCEMENT : 31/05/2019 O R D E R PER G.S. PANNU, VP : THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAIN ING TO ASSESSMENT YEAR 2008-09 IS DIRECTED AGAINST AN ORDE R PASSED BY CIT(A)-17, MUMBAI DATED 30.10.2017, WHICH IN TURN A RISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 30.32016. 2 ITA NO. 425/MUM/2018 A.Y. 2008-09 2. IN THIS APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1,00,00,000/ - MADE U/S.68 OF THE INCOME TAX ACT, 1961 BY THE ASSESSING OFFICER ON AC COUNT OF UNEXPLAINED CASH CREDIT ON THE GROUND THAT THE APPE AL WAS FILED MANNUALY. 3. FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRY FROM THE VARIOUS ENTITIES IN TH E NATURE OF SHARE APPLICATION MONEY OF RS.1,00,00,000/- AS UNDER: SR. NO. NAME OF THE PARTY SHARE CAPITAL RECEIVED (RS.) 1. HEMA TRADING COMPANY PVT LTD.(NAKHATRA BUSINESS PVT LTD) 5,00,000 2. RAJESH GODS PVT LTD. 15,00,000 3. ANUPRIYA VINIMAY PVT LTD. 15,00,000 4. LOKNATH VYAPAR PVT LTD. 10,00,000 5. KAMYU COMMERCIAL PVT LTD. 10,00,000 6. FLORA STOCK BROKING PVT LTD. 10,00,000 7. MULTI PHASE ENGG. IND LTD. 15,00,000 8. KIRTI GOODS PVT LTD. 12,00,000 9. NILIMA GOODS PVT LTD. 3,00,000 10. NARAYANI TEXMIN PVT LTD. 5,00,000 TOTAL: 1,00,00,000 4. THE ASSESSING OFFICER ISSUED NOTICES U/S.133(6) OF THE INCOME TAX ACT, 1961 TO THE ABOVE ENTITIES TO VERIFY THE IDENT ITY, CREDITWORTHINESS, GENUINENESS, SOURCE AND NATURE OF THE TRANSACTIONS, WHICH WERE RETURNED BACK UNSERVED BY THE POSTAL AUTHORITIES. THEREAFTER, A COMMISSION U/S.131(1)(D) OF THE I.T.ACT, 1961 WAS I SSUED TO DDIT(INV), UNIT 2(4), KOLKATA ON 1.3.2016 AND THE REPORT WAS RECEIVED INTIMATING THAT SOME OF THE ENTITIES ARE NOT IN EXISTENCE AND IN SOME CASES, SUMMONS HAVE BEEN SERVED BUT NOBODY APPEARED. IN V IEW OF THE ABOVE FACTS, THE ASSESSING OFFICER OBSERVED THAT TH E ASSESSEE CLEARLY FAILED TO PROVE THE IDENTITY, CREDITWORTHINESS OF T HE LENDER AND GENUINENESS, NATURE AND SOURCE OF THE TRANSACTIONS AND, ACCORDINGLY, ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE U/S.68 OF THE INCOME TAX ACT, 1961. 3 ITA NO. 425/MUM/2018 A.Y. 2008-09 5. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE CIT(A). 6. THE CIT(A) OBSERVED THAT THE ASSESSEE FILED APPE AL MANUALLY, WHICH WAS TO BE FILED ELECTRONICALLY IN VIEW OF THE NOTIFICATION NO.SO 637(E)( NO.11/2016(F.NO.149/150/2015-TPL) DATED 1.3 .2016 AND FURTHER NOTIFICATION NO. 5/2016 DATED 6.4.2016 BY P R. DGIT (SYSTEMS) AND CBDT CIRCULAR NO.20 OF 2016 DATED 26.5.2016. H E OBSERVED THAT THE MANUAL APPEAL FILED BY THE ASSESSEE IS NOT ADMI SSIBLE AS PER PROVISIONS OF SECTION 249(1) OF THE INCOME TAX ACT, 1961. THEREFORE, HE DISMISSED THE APPEAL TREATING THE SAME AS NOT MA INTAINABLE AND INVALID AB INITO. 7. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD FILED APPEAL MANUALLY WITHIN TIME LIMI T. THE ASSESSEE WAS NOT AWARE OF CIRCULAR OF CBDT AND SUBSEQUENT NOTIFI CATION TO FILE THE APPEAL ELECTRONICALLY. BEFORE THE CIT(A), THE ASSE SSEE REQUESTED FOR CONDONATION OF NON-FILING THE APPEAL ELECTRONICALLY , WHICH WAS REJECTED ON TECHNICAL GROUND. HE SUBMITTED THAT THE CIT(A) HAS DISMISSED THE APPEAL ON TECHNICAL GROUND WITHOUT DISCUSSING THE A PPEAL ON MERITS. HE, THEREFORE, PRAYED TO DIRECT THE CIT(A) TO COND ONE FOR NON-FILING THE APPEAL ELECTRONICALLY AND DECIDE THE APPEAL ON MERI TS. LD A.R. ALSO FILED AN ORDER DATED 16.5.2018 OF THE CO-ORDINATE BENCHES OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE ITSELF IN ITA NO.426/MUM/2 018 FOR A.Y. 2010- 2011, WHEREIN, ON SIMILAR FACTS, THE TRIBUNAL HAS D IRECTED THE CIT(A) TO ADMIT THE APPEAL FILED BY THE ASSESSEE MANUALLY AFT ER CONDONING THE DELAY AND FOR DECISION AFRESH. 8. ON THE OTHER HAND, LD D.R. SUBMITTED THAT THE FA CT THAT THE ASSESSEE WAS NOT AWARE OF THE CIRCULAR AND NOTIFICA TION OF CBDT IS AN AFTERTHOUGHT EXPLANATION, WHICH SHOULD NOT BE ACCEP TED. 4 ITA NO. 425/MUM/2018 A.Y. 2008-09 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. WE OBSERVE THAT IT IS A FACT THAT THE CBDT HAS MANDATED FILING OF APPEAL ELECTRONICALLY BY ISSUING CIRCULAR AND NOTIFICATION S AND FURTHER SUBSEQUENT NOTIFICATIONS REFERRED TO ABOVE THAT THE ASSESSEE IS REQUIRED TO FILE ELECTRONICALLY WITHIN THE STIPULATED DATE. HOWEVER, IT IS THE CONTENTION OF THE ASSESSEE THAT THAT NOTIFICATION A ND CIRCULARS WERE NOT AWARE TO THE ASSESSEE AND THE APPEAL WAS FILED MANU ALLY. WE HAVE NOTED THAT IN ASSESSEES OWN CASE IN THE ASSESSMENT YEAR 2010-11, ON SIMILAR FACTS, THE TRIBUNAL HAS DIRECTED THE CIT(A) TO CONDONE NON-FILING OF APPEAL ELECTRONICALLY AND DECIDE THE APPEAL ON M ERITS, INTER ALIA, OBSERVING AS UNDER: 7. HAVING HEARD BOTH THE SIDES, WE FIND MERITS IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT DURIN G TRANSITION PERIOD THE PROVISIONS OF ANY NOTIFICATIO N OR CIRCULARS MANDATING THE ASSESSES TO FOLLOW CERTAIN INSTRUCTIO NS SHOULD NOT BE STRICTLY APPLIED. WE FURTHER NOTICED THAT T HE ASSESSEE HAS FILED ITS APPEAL IN MANUAL FORM AND SUCH APPEAL HAS BEEN FILED WITHIN THE PRESCRIBED TIME UNDER THE INCOME T AX ACT, 1961. THEREFORE, WE ARE OF THE CONSIDERED VIEW THA T MERELY BECAUSE THE ASSESSEE HAS NOT FILED THE APPEAL ELECT RONIC FORM, THE ASSESSEES APPEAL CANNOT BE DISMISSED ON TECHNICAL GROUNDS THAT TOO DURING TRANSITION PERIOD. WE FURT HER NOTICED THAT THE HONBLE SUPREME COURT AND VARIOUS HIGH COU RTS HAVE ALREADY CATEGORICALLY STATED THAT WHEN TECHNIC ALITIES AND SUBSTANTIAL JUSTICE IT PITTED AGAINST EACH OTHER , THE SUBSTANTIAL JUSTICE DESERVES TO BE PREVAILED OVER TECHNICALITIES. THEREFORE, WE ARE OF THE CONSIDERE D VIEW THAT THE LD CIT(A) WAS ERRED IN DISMISSING THE APPEAL FI LED BY THE ASSESSEE AS NOT MAINTAINABLE, HENCE, WE SET AISDE T HE ISSUE TO THE FILE OF THE CIT(A) AND DIRECT HIM TO ADMIT T HE APPEAL FILED BY THE ASSESSEE BY DIRECTING THE ASSESSEE TO FILE ITS APPEAL IN ELECTRONIC FORMAT AND ALSO TO CONDONE THE DELAY IN FILING SUCH APPEAL IN ELECTRONIC FORMAT. WE ALSO D IRECT THE CIT(A) TO DECIDE THE ISSUES ON MERITS. 10. SINCE THE FACTS ARE IDENTICAL, FOLLOWING THE SA ME,`W WE DIRECT THE CIT(A) TO CONDONE THE ASSESSEE FOR NON-FILING THE A PPEAL ELECTRONICALLY 5 ITA NO. 425/MUM/2018 A.Y. 2008-09 AND DECIDE THE ISSUE ON MERITS AFTER AFFORDING REAS ONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 11. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED ON 31/05/2019 SD/- SD/- (JUSTICE P.P. BHATT) PRESIDENT (G.S. PANNU) VICE PRESIDENT MUMBAI, DATE : 31/05/2019 B.K.PARIDA, SR.PS COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, F BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI
