Shri.Ullas Sathyaraj Chadagar , Bangalore V. Income Tax Officer Ward-7(2)(4), Bangalore

ITA 484/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4616 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Keywords: Period of limitation; Right to appeal
• Section: 54F; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO. 4 8 4 /BANG/201 8 ASSESSMENT YEAR : 20 13 - 14 SHRI. ULLAS SATHYARAJ CHADAGAR, # 43, ROHINI, 5 TH MAIN ROAD, PADMANABHANAGAR, BENGALURU 560 070. PAN : A BRPC 1345 G VS. THE INCOME-TAX OFFICER, WARD 7(2(4), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. G. VENKATESH, ADVOCATE REVENUE BY : SHRI. B. R. RAMESH, J CIT DATE OF HEARING : 0 7 . 0 6 .201 8 DATE OF PRONOUNCEMENT : 15 . 0 6 .201 8 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: 1. THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-7, BANGALORE, PASSED UNDER SECTION 250 OF THE INCOME TAX ACT, 1961 IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN DISMISSING THE APPEAL FILED BY THE APPELLANT MERELY FOR THE REASON THAT THE APPEAL WAS NOT FILED ON-LINE AND WAS FILED IN PAPER FORM ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO. 484/BANG/2018 PAGE 2 OF 4 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT IS NOT A PERSON WHO IS REQUIRED TO FURNISH THE RETURN OF INCOME ELECTRONICALLY UNDER RULE 12 AND ACCORDINGLY, THE APPELLANT IS NOT COMPULSORILY REQUIRED TO E-FILE THE APPEAL UNDER RULE 45 OF THE INCOME-TAX RULES, 1962 ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. WITHOUT PREJUDICE, THE APPELLANT MAY BE PERMITTED TO E-FILE THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IF THIS HON'BLE TRIBUNAL IS OF THE OPINION THAT THE APPELLANT WAS REQUIRED TO COMPULSORILY E-FILE THE APPEAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF EQUITY AND JUSTICE. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERITS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD THAT THE APPELLANT WAS ENTITLED TO THE CLAIM OF EXEMPTION OF RS. 58,19,532/-U/S 54F OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ALSO CONSIDERED THAT THE APPELLANT HAD PRODUCED THE RELEVANT DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM OF THE ABOVE EXEMPTION ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE APPELLANT CRAVES FOR LEAVE OF THIS HON'BLE TRIBUNAL, TO ADD, ALTER, DELETE, AMEND OR SUBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL AS MAY BE NECESSARY AT THE TIME OF HEARING. 9. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE AND EQUITY. 2. DURING THE COURSE OF HEARING, THE ASSESSEE HAS ALSO FILED THE ADDITIONAL GROUNDS WHICH ARE AS UNDER: 1. WITHOUT PREJUDICE, THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE THERE IS NO LONG-TERM CAPITAL GAIN TAXABLE IN THE HANDS OF THE APPELLANT FOR THE RELEVANT ASSESSMENT YEAR ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO. 484/BANG/2018 PAGE 3 OF 4 2. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD THAT THE AMOUNT RECEIVED BY THE APPELLANT IN RESPECT OF TRANSFER OF AN IMMOVABLE PROPERTY IN RESPECT OF WHICH THE APPELLANT DID NOT HAVE A VALID TITLE IN LAW CANNOT BE BROUGHT TO TAX IN THE HANDS OF THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT ON AN APPLICATION OF THE PRINCIPLES OF REAL INCOME THEORY, THERE IS NO REAL INCOME EARNED IN THE HANDS OF THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. WITHOUT PREJUDICE, THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT ANY AMOUNTS RECEIVED BY THE APPELLANT STANDS DIVERTED AT SOURCE BY OVER- RIDING TITLE AND HENCE THERE IS NO INCOME TAXABLE IN THE HANDS OF THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEVY OF INTEREST UNDER SECTION 234B OF THE ACT IS BAD IN LAW AS THE PERIOD, RATE, QUANTUM AND METHOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNABLE AND ARE WRONG ON THE FACTS OF THE CASE. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE, CHANGE AND DELETE ANY OF THE GROUNDS OF APPEAL. 7. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED. 3. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION THAT THIS IS THE FIRST YEAR WHEREIN THE APPEALS BEFORE THE CIT(A) ARE TO BE FILED ONLINE IN PLACE OF PAPER FILING (MANUALLY). IT WAS FURTHER CONTENDED THAT AT THE RELEVANT POINT OF TIME THERE WERE SOME GLITCHES THEREFORE THE ASSESSEE COULD NOT FILE ONLINE AND HAS FILED PHYSICALLY BEFORE THE CIT(A). BUT THE CIT(A) DID NOT ENTERTAIN THE APPEAL ON THE GROUND THAT IT WAS FILED PHYSICALLY AND NOT FILED ELECTRONICALLY. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IT WAS NOT WIDELY CIRCULATED THAT APPEAL FILED PHYSICALLY OR THROUGH PAPER FILING WILL NOT AT ALL BE ACCEPTED BY THE CIT(A). THEREFORE, THE ASSESSEES RIGHT TO FILE AN APPEAL AGAINST THE ASSESSMENT ORDER CANNOT BE DENIED ONLY FOR THE SIMPLE REASON THAT APPEAL WAS NOT FILED ELECTRONICALLY. ITA NO. 484/BANG/2018 PAGE 4 OF 4 THE LEARNED DR PLACED HEAVY RELIANCE UPON THE ORDER OF THE CIT(A) WITH THE SUBMISSION THAT APPEALS ARE TO BE FILED IN ACCORDANCE WITH RULES. SINCE IT WAS NOT FILED ELECTRONICALLY AS PER RULES, THE CIT(A) HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A) IN THE LIGHT OF RIVAL SUBMISSIONS WE FIND THAT NO DOUBT ASSESSEE WAS REQUIRED TO FILE THE APPEAL ELECTRONICALLY AND THIS IS THE FIRST YEAR WHEREIN THE REVENUE HAS INTRODUCED THE NEW SYSTEM OF FILING OF THE APPEALS ONLINE, BUT FOR THE SIMPLE REASON THAT THE ASSESSEE COULD NOT FILE THE APPEAL ELECTRONICALLY ON ACCOUNT OF GLITCHES IN THE WEBSITE OR OTHER REASONS, THE RIGHT TO APPEAL CANNOT BE DENIED TO THE ASSESSEE. UNDISPUTEDLY THE APPEAL THROUGH PAPER FILING WAS FILED WITHIN THE PERIOD OF LIMITATION. THEREFORE, WE ARE OF THE VIEW THE CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT INSTEAD OF FINDING TECHNICAL FAULT THEREIN. WE THEREFORE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE APPEAL FILED BY THE ASSESSEE ON MERIT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2018. SD/- SD/- BANGALORE. DATED: 15 TH JUNE, 2018. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE. ( INTURI RAMA RAO ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER