AMOL SECURITIES P.LTD, MUMBAI V. ITO 2(1)(1), MUMBAI

ITA 4559/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1445 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 20-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MICHAEL JERALD
• Keywords: Opportunity of being heard; Period of limitation
• Section: 142(1); 14A; 115JB; 143(2); 13; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 4559 /MUM. /2018 ( ASSESSMENT YEAR : 20 13 14 ) AMOL SECURITIES PVT. LTD. 106, MOTABAI WADIA BUILDING 1 ST FLOOR, 22 ND SA BRELVI ROAD FORT, MUMBAI 400 020 PAN AAECA4339B . APPELLANT V/S INCOME TAX OFFICER WARD 2(1)(1), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI S . MICHAEL JERALD DATE OF HEARING 12.12.2019 DATE OF ORDER 13.12.2019 O R D E R PER M. BALAGANESH, A .M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 8 TH MAY 2018, PASSED BY THE LEARNED CIT(A) 4 , MUMBAI, FOR THE ASSESSMENT YEAR 20 13 14 . 2. THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED BELOW: THE LEARNED CIT(A) ERRED IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN DISMISSING THE APPEAL FILED BEFORE HIM 2 AMOL SECURITIES PVT. LTD. WITHOUT ADJUDICATING THE MERITS OF THE CASE, ONLY BECAUSE IT WAS NOT FILED ONLINE. REASON GIVEN BY THE LEARNED CIT(A) IN DISMISSING THE APPEAL AND THUS CONFIRMING THE ADDITIONS THAT THE ASSESSING OFFICER MADE, ARE WRONG, INSUFFICIENT AND CONTRARY TO FACTS AND EVIDENCE ON RECORD AND IN LAW. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OR AL L THE ABOVE GROUNDS OF APPEAL. 3. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR ADJOURNMENT EITHER. IN THESE CIRCUMSTANCES, WE PROCEED TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND THE MATERIAL AVAILABLE ON RECORD. 4. BRIEF FACTS ARE, THE ASSESSEE BEING A COMPANY ENGAGED IN THE BUSINESS OF TRADING IN SHARES, BROKERAGE AND FINANCING, FILED IT S RETURN OF INCOME ELECTRONICALLY FOR THE YEAR UNDER CONSIDERATION ON 28 TH SEPTEMBER 2013, DECLARING TOTAL INCOME AT ` NIL. THE RETURN OF INCOME WAS INITIAL LY PROCESSED UNDER SECTION 143(1 ) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). SUBSEQUENTLY, T HE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED ALONG WITH DETAILED QUESTIONNAIRE WITH A NOTICE UNDER SECTION 142(1) OF THE ACT. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY MAKING ADDITION UNDER SECTION 14A AT ` 3,79,905, AND RESULTANT BOOK PROFIT 3 AMOL SECURITIES PVT. LTD. UNDER SECTION 115JB OF THE ACT AT ` 10,63,476. AGAINST THE ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT(A) MANUALLY. THE LEARNED CIT(A), NOTICING THAT THE ASSESSEE HAS NOT FILED THE APPEAL ELECTRONICALLY AS PER THE AMENDED RULE 45 OF THE INCO ME TAX RULES, 1962, BUT HAS FILED IT MANUALLY, DISMISSED ASSESSEES APPEAL IN LIMIN E WITHOUT DECIDING THE ISSUE RAISED THEREIN ON MERIT. HOWEVER, HE HAS GIVEN LIBERTY TO THE ASSESSEE TO FILE THE APPEAL AGAIN ELECTRONICALLY . BEING AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS PER RULE 45, INTRODUCED TO THE STATUTE W.E.F. 1 ST MARCH 2016, ANY APPEAL TO BE FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) UNDER SE CTION 249(1) OF THE ACT, HAS TO BE FILED IN ELECTRONIC FORM. FACTS ON RECORD REVEAL THAT THE ASSESSEE FILED THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) MANUALLY AND OUGHT TO HAVE FILED APPEAL ELECTRONICALLY. IN OUR OPINION, WHEN THE ASSESSEE HAS FILED THE APPEAL MANUALLY WITHIN THE PRESCRIBED PERIOD OF LIMITATION, THE LEARNED CIT(A) SHOULD NOT HAVE DISMISSED THE APPEAL IN LIMINE FOR A MERE TECHNICAL BREACH. RATHER HE SHOULD HAVE PROVIDED AN OPPORTUNITY TO THE ASSESSEE TO FILE THE APPEAL ELECT RONICALLY AND DECIDED THE APPEAL ON MERIT. CONSIDERING THE ABOVE, WE DIRECT THE ASSESSEE TO FILE APPEAL FOR THE IMPUGNED ASSESSMENT YEAR BEFORE THE 4 AMOL SECURITIES PVT. LTD. LEARNED CIT(A) IN ELECTRONIC FORM, IF IT HAS NOT BEEN FILED. ON FILING OF THE APPEAL IN ELECTRONIC FORM, LEA RNED CIT(A), WHILE CONDONING THE DELAY, DECIDE THE APPEAL ON MERIT AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WITH THE AFORESAID OBSERVATIONS, THE GROUNDS RAISED ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON 13.12.2019 SD/ - MAHAVIR SINGH JUDICIAL MEMBER SD/ - M. BALAGANESH ACCOUNTANT MEMBER MUMBAI, DATED: 13.12.2019 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI