S Vimal Kumar, Chennai V. DCIT, Corp Cir 6(1), Chennai

ITA 458/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6215 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 22-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D DIVAHAR IRS
• Keywords: Salary income; Period of limitation; Right to appeal
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./I.T.A. NO. 458/CHNY/2019 ! ' / ASSESSMENT YEAR : 2013-2014. SHRI. S. VIMAL KUMAR, PRABHAKAR APARTMENT, 2 ND FLOOR, 36 MELONY ROAD, T. NAGAR, CHENNAI 600 017. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(1) CHENNAI. [PAN AAMPS 0651B] ( / APPELLANT) ( /RESPONDENT) # $ % / APPELLANT BY : NONE &' # $ % /RESPONDENT BY : SHRI. D. DIVAHAR, IRS, JCIT. ( ) $ * /DATE OF HEARING : 16-09-2019 +,'! $ * /DATE OF PRONOUNCEMENT : 10-10-2019 / O R D E R PER INTURI RAMA RAO , ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-15, CHENNAI (CIT(A) FOR SHORT) DATED 31.12.2018 FOR THE ASSE SSMENT YEAR (AY) 2013-2014. ITA NO. 458/CHNY/2019 :- 2 -: 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO LAW AND FACTS OF THE CASE. 2. THE APPELLANT, THEREFORE, HUMBLY SUBMITS THAT TH E IMPUGNED ORDER IS ILLEGAL AND UNSUSTAINABLE IN LAW. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT ACCEPTED THE ORIGINAL FORM 35 FILED MANUALLY WELL WITHIN THE DUE DATE AND THE CIT APPEAL FAILED TO APPRECIATE THE FACT THAT T HE APPELLANT HAD FILED FORM 35 ELECTRONICALLY ONLY TO SUPPLEMENT THE ORIGINAL RETURN FILED MANUALLY. 4. THE CIT APPEALS FAILED TO APPRECIATE THE GENUINE NESS OF THE APPELLANT ON ACCOUNT OF THE FACT THAT THE ORIGINAL FORM 35 FILED MANUALLY WAS WELL WITHIN THE DUE DATE SPECIFIED FOR FILING THE APPEAL WITH APPELLATE AUTHORITIES AND THE APPELLANT FURTHER CONTENDS THAT IS ONLY A QUESTION OF INADVERTENT MIS TAKE ON THE PART OF APPELLANT IN NOT FILING THE FORM 35 ELECTRO NICALLY FOR A FORM 35 ALREADY FILED MANUALLY WELL WITHIN THE DUE DATE AND HENCE THIS APPEAL. 3. T HE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS AN INDIVIDUAL DERIVING INCOME UNDE R THE HEAD INCOME FROM SALARY. THE RETURN OF INCOME FOR TH E AY 2013-14 WAS FILED ON 04.08.2013 DISCLOSING TOTAL INCOME OF D35 ,35,860/-. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPL ETED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(1), CHENNAI AFTER MAKING DISALLOWANCE OF D19,20,047/- U /S.14A OF THE ACT AND RESTRICTING INTEREST ON HOUSING LOAN BY D1,53,5 68/- VIDE ORDER DATED 29.03.2016 PASSED U/S. 143(3) OF THE INCOME T AX ACT, 1961 (FOR SHORT THE ACT). ITA NO. 458/CHNY/2019 :- 3 -: 4. BEING AGGRIEVED, ASSESSEE MOVED PETITION DATED 11. 04.2016 U/S.154 OF THE ACT POINTING OUT THE MISTAKE IN THE CALCULATION OF DISALLOWANCE U/S.14A OF THE ACT, WHO HAD MODIFIED T HE AMOUNT OF DISALLOWANCE AT D4,60,063/- U/S.14A OF THE ACT. 5. BEING AGGRIEVED BY THE AMOUNT OF DISALLOWANCE, AS SESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) MANUALLY ON 28.04.2016. THE LD. CIT(A) HAD CALLED UPON THE ASSESSEE AS TO WHY THE A PPEAL CANNOT BE TREATED AS NON-EST IN THE EYES OF LAW AS APPEAL WAS NOT FILED ELECTRONICALLY AS PRESCRIBED UNDER RULE 45 OF THE I NCOME TAX RULES, 1962. SUBSEQUENTLY, ASSESSEE FILED THE APPEAL ELEC TRONICALLY ON 19.12.2018. THE LD. CIT(A) CONCLUDED THAT APPEAL W AS FILED WITH DELAY OF 918 DAYS AND THE EXPLANATION GIVEN FOR DELAY IS HELD TO BE NOT BONAFIDE AND ACCORDINGLY DISMISSED THE APPEAL. 6. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), TH E APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. AT TH E TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. 7. ON THE OTHER HAND, THE LD. SR. DEPARTMENTAL REPRESE NTATIVE PLACED RELIANCE ON THE ORDERS OF LOWER AUTHORITIES. 8. WE HEARD THE LD. SR. DEPARTMENTAL REPRESENTATIVE AN D PERUSED THE MATERIAL ON RECORD. THE APPEAL WAS FIL ED MANUALLY WITHIN THE PERIOD OF LIMITATION PRESCRIBED UNDER THE STATU TE. NO DOUBT INCOME ITA NO. 458/CHNY/2019 :- 4 -: TAX RULES PRESCRIBES THAT THE APPEAL BEFORE THE LD .CIT(A) SHOULD BE FILED ELECTRONICALLY. IT IS MATTER OF RECORD THAT LD. CIT(A) HAD ACCEPTED THE APPEAL, THE DEFECT WAS POINTED OUT ONLY IN THE YEAR 2018 AND IMMEDIATELY, THEREAFTER ASSESSEE HAD FIELD APPEAL ELECTRONICALLY IN TERMS OF RULE 45. THE RIGHT OF APPEAL IS AN SUBSTAN TIVE RIGHT. THE FORM OF FILING OF APPEAL PROCEDURE PRESCRIBED FALL S WITHIN THE DOMAIN OF LAW OF PROCEDURE. THE LAW OF PROCEDURE HAS TO BE A PPROACHED, UNDERSTOOD AND APPRECIATED AS A HELPMATE IN THE CO URSE OF THE PROCESS OF ADMINISTRATION OF JUSTICE. PROCEDURAL P ROVISIONS SHOULD BE SO CONSTRUED AS TO SUBSERVE THE COURSE OF JUSTICE A ND NOT TO HINDER IT. IT IS NOW WELL-SETTLED THAT A PROCEDURAL PROVISION, ORDINARILY, SHOULD NOT BE CONSTRUED AS MANDATORY, IF THE DEFECT IN THE ACT DONE IN PURSUANCE OF IT CAN BE CURED BY PERMITTING APPROPRIATE RECTIF ICATION TO BE CARRIED OUT AT A SUBSEQUENT STAGE. PROCEDURAL LAWS ARE DEVI SED AND ENACTED FOR THE PURPOSE OF ADVANCING JUSTICE. REFERENCE CAN BE MADE TO THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. HARDEODAS AGARWALLA TRUST, (1992) 198 ITR 511. IN THE PRESENT CASE, THOUGH THE APPEAL WAS FILED MANUALLY, LD. CIT(A) HAD TAKEN COGNIZANCE OF APPEAL MEMO, WHEN REQUIRED BY CIT(A) TO FILE APPEAL ELECTRONICALLY, IT WAS DULY COMPLIED WITH BY THE AS SESSEE. THEREFORE, APPEAL RELATES BACK TO THE DATE OF FILING OF APPEAL MANUALLY. THUS, THERE WAS NO DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A). ITA NO. 458/CHNY/2019 :- 5 -: THEREFORE, WE HOLD THAT LD. CIT(A) OUGHT NOT HAVE DISMISSED THE APPEAL IN LIMINE WITHOUT CONSIDERING THE MERITS OF THE ASSESSMENTS. IN THE CIRCUMSTANCES, WE REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DENOVO ASSESSMENT AFTER AFFORDING DUE OP PORTUNITY OF HEARING TO THE APPELLANT IN ACCORDANCE WITH LAW. HE NCE, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURP OSES. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 10TH DAY OF OCTOBER, 2019, AT CHENNAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER -) / CHENNAI . / DATED: 10TH OCTOBER, 2019. KV /0 $0& *12032'* / COPY TO: 0 1 . # / APPELLANT 3. 0 ( 4*056 / CIT(A) 5. 278 0& * 9 / DR 2. &' # / RESPONDENT 4. 0 ( 4* / CIT 6. 8:0;) / GF