ARYA COMMUNICATIONS AND ELECTRONICS SERVICES PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-6(4), MUMBAI

ITA 4599/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0944 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 27-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Keywords: Procedural lapse

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 4599/MUM/2017 ( / ASSESSMENT YEAR: 2013 - 14 ) ARYA COMMUNICATIONS & ELECTRONICS SERVICES PVT. LTD. GODREJ COLISEUM, OFFICE NO. 801, C - WING, BEHIND EVERARD NAGAR, NEAR PRIYADRASHINI, SION (E), MUMBAI - 400 022 / VS. THE DY. CIT, CENTRAL CIRCLE - 6(4), ROOM NO. 1925, 19 TH F LOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI - 400 021 ./ ./ PAN/GIR NO. AAACA 1028 P ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI HARSH SHAH / RESPONDENT BY : MS. N. HEMALATHA / DATE OF HEARING : 10.10.2017 / DATE OF PRONOUNCEMENT : 01.01.2018 / O R D E R PER SHAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) DATED 30.3.2017 AND PERTAINS TO THE ASSESSMENT YEAR 2013 - 14. THE ISSUE RAISED IS THAT THE LD. COMMISSIONER OF INCOME TAX 2 ITA NO. 4599/MUM/2017 (A.Y. 2013 - 14) ARYA COMMUNICATIONS & ELECTRONICS SERVICES PVT. LTD. VS. ITO (APPEALS) ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE IN THE GROUND THAT THE APPEAL IS NOT MAINTAINABLE . 2. BRIEF FACTS OF THE CASE LEADING TO THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HOLDING THAT THE APPEAL IS NOT MAINTAINABLE READ AS UNDER: 3.2 IN THIS CASE THE APPELLANT HAD FILED APPEAL ON 03.03.2016 IN PAPER FORM. SUBSEQUENTLY, IT WAS OBSERVED THAT. RULE 45 OF THE INCOME TAX RULES HAVE BEEN MODIFIED W.E.F 01.03.2016 AND THE SAME PROVIDES THAT W.E.F 01.03.2016, THE APPEALS BEFORE THE CIT(APPEALS) SHALL BE MADE IN MODIFIED FORM NO. 35, ELECTRONICALLY, WHERE THE ASSESSEE UNDER SUB RULE (3) OF RULE 12 IS REQUIRED TO FILE RETURN OF INCOME ELECTRONICALLY. FURTHER, VIDE CBDT NOTIFICATION NO. 11/2016 DATED 01.03.2016, THE FORM NO. 35, IN WHICH THE APPEAL BEFORE THE CIT(APPEALS) IS REQUIRED TO BE FILED, WAS ALSO MODIFIED. 3.3 THE CBDT VIDE CIRCULAR NO. 20/2016 DATED 26.05.2016 HAD CLARIFIED THAT THOSE ASSESSES WHO COULD NOT FILE APPEALS ELECTRONICALLY ON OR AFTER 01.03.201 6 DUE TO LACK OF KNOWLEDGE/TECHNICAL ISSUE AND HAD FILED PAPER APPEALS, SHOULD FILE APPEALS ELECTRONICALLY TILL 15.06.2016 AND SUCH APPEALS WILL BE TREATED AS APPEAL FILED WITHIN TIME. IN VIEW OF THE ABOVE, THE APPELLANT'S LD. AR VIDE ORDER SHEET NOTING DATED 30.03.2017 WAS REQUESTED TO EXPLAIN AS TO WHETHER THE APPELLANT WAS REQUIRED TO FILE RETURN IN ELECTRONIC FORM AND WHETHER THE APPELLANT HAS FILED APPEAL ELECTRONICALLY ON OR BEFORE 15.06.2016. IN RESPONSE TO THE SAME, THE LD. AR VIDE ORDER SHEET NOTING DATED 30.03.2017 FILED WRITTEN SUBMISSIONS AND REQUESTED TO CONSIDER THE SAME WHILE DECIDING THE APPEAL. 3.4 VIDE THE ABOVE REFERRED WRITTEN SUBMISSIONS FILED ON 30.03.2017, THE APPELLANT HAS SUBMITTED AS UNDER. 'REFER THE DISCUSSION WE HAD WITH YOU IN CONNECTION WITH THE APPEAL FILED BY US IN THE CASE OF ARYA COMMUNICATIONS & ELECT. SER. PVT. LTD FOR AY 2013 - 14, WE HAVE TO STATE AS UN DER; - VIDE CBDT' NOTIFICATION DATED 01 - 03 - 20/6, ALL APPEALS WITH EFFECT FROM 1 ST MARCH 2016 WERE TO BE COMPULSORILY E - FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IN RESPECT OF THOSE PERSONS WHO ARE REQUIRED TO FURNISH RETURN OF INCOME ELECTRONIC ALLY. SINCE THE PORTAL FOR FILING OF THE APPEALS WAS NOT FUNCTIONAL ON 02 - 03 - 2016, THE ABOVE APPEAL FOR AY 2013 - 14 WAS FILED BY US WITH YOUR OFFICE IN THE NORMAL COURSE. IN THE MEANWHILE THE DEPARTMENT ISS UED A CIRCULAR EXTENDING THE DATE OF E - FILING OF AP PEALS TILL 15 - 06 - 2016 FOR WHO COULD 3 ITA NO. 4599/MUM/2017 (A.Y. 2013 - 14) ARYA COMMUNICATIONS & ELECTRONICS SERVICES PVT. LTD. VS. ITO NOT DO SO EARLIER ON ACCOUNT OF NON FUNCTIONALITY FOR VERIFICATION OF E - APPEALS AND HAD FILED PAPER APPEALS. WE STATE THAT ON ACCOUNT OF AN OVERSIGHT, THE ABOVE REFERRED CIRCULAR OF THE DEPARTMENT WENT TOTALLY UN - NOTICE D BY US AND WE COULD NOT E - FILE THE APPEAL WITHIN THE EXTENDED TIME. KINDLY, NOTE THAT THIS LAPSE WAS TOTALLY UN INTENTIONAL AND HAPPENED PURELY THROUGH OVERSIGHT. WE HAVE NOW ELECTRONICALLY FILED THE APPEAL AND ACKNOWLEDGED COPY OF THE SAME IS ATTACHED HE REWITH. UNDER THE ABOVE CIRCUMSTANCES, SINCE THE PROCEDURAL LAPSE ON OUR PART IS THROUGH SHEER OVERSIGHT AND AS WE HAVE FILED THE PAPER APPEAL BEFORE THE DUE DATE OF FILING, WE EARNESTLY REQUEST YOUR HONOUR TO KINDLY CONDONE THE DELAY IN ELECTRONICALLY FI LING THE APPEAL. WE ALSO REQUEST YOUR HONOUR TO KINDLY CONSIDER THE APPEAL NOW ELECTRONICALLY FILED AS A VALID APPEAL AND GIVE US A FRESH DATE FOR A PERSONAL HEARING AT YOUR EARLIEST.' 3. CONSIDERING THE ABOVE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT AS PER LAW , HE HAD NO POWER TO CONDONE THE DELAY AND ADMIT THE APPEAL. ACCORDINGLY, HE DISMISSED THE APPEAL IN LIMINE . 4. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD BOTH THE COUNSELS AND PERUSED THE R ECORDS. I FIND THAT IN THIS CASE, THIS WAS THE FIRST YEAR WHEN CBDT HAD MANDATED THAT APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS TO BE FILED ELECTRONICALLY. THE ASSESSEE HAD FILED THE APPEAL IN PAPER FORMAT BUT HAD FAILED TO FILE THE AP PEAL ELECTRONICALLY. THE ASSESSEE IN THIS REGARD SUBMITTED THAT THIS WAS THE FIRST YEAR AND THERE WAS PROCEDURAL LAPSE ON THE PART OF THE ASSESSEE WHICH LEAD TO THE FAILURE ON THE PART OF THE ASSESSEE. HOWEVER , DURING THE COURSE OF PROCEEDINGS BEFORE THE L D. COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAS FILED THE APPEAL ELECTRONICALLY. IN MY 4 ITA NO. 4599/MUM/2017 (A.Y. 2013 - 14) ARYA COMMUNICATIONS & ELECTRONICS SERVICES PVT. LTD. VS. ITO CONSIDERED OPINION, SUBSTANTIAL INTEREST OF JUSTICE DEMANDS THAT THE DELAY IN THIS CASE BE CONDONED. ACCORDINGLY, IN THE INTEREST OF JUSTICE, I CONSIDER IT APP OSITE TO CONDONE THE DELAY. THE DELAY IN FILING THE APPEAL ELECTRONICALLY IS ACCORDINGLY CONDONED. THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) IS DIRECTED TO CONSIDER THE ISSUE ON MERITS AND PASS A SPEAKING ORDER AFTER GIVING THE ASSESSEE A N O PPORTUNITY O F BEING HEARD. 6. IN THE RESULT, TH IS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.01.2018 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 01.01.2018 . . ./ ROSHANI , SR. PS / COPY O F THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F IL E / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI