UNIQUE PROPERTIES & SECURITIES PVT. LTD., MUMBAI V. DCIT CENT. CIR. 6(3)), MUMBAI

ITA 5475/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0370 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 28-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMALATHA
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 5475/MUM/2017 ( / ASSESSMENT YEAR: 2013 - 14 ) M/S. UNIQUE PROPERTIES & SECURITIES PVT. LTD. 4 TH FLOOR, MALHOTRA HOUSE, OPP. GPO, FORT, MUMBAI - 400 001 / VS. DY. CIT, CENTRAL CIRCLE 6(3), 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI 400 021 ./ ./ PAN/GIR NO. AAACU 0702 G ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PRAYAG JHA / RESPONDENT BY : MS. HEMALATHA / DATE OF HEARING : 27.11.2017 / DATE OF PRONOUNCEMENT : 05.02 .2018 / O R D E R PER S HAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 28.06.2017 AND PERTAINS TO THE A SSESSMENT YEAR 2013 - 14. 2. T HE GROUNDS OF APPEAL READ AS UNDER: 2 ITA NO. 5475/MUM/2017 (A.Y. 2013 - 14) M/S. UNIQUE PROPERTIES & SECURITIES PVT. LTD. VS. DY. CIT 1. THE LD CIT(A) ERRED IN DISMISSING THE ASSESSES'S APPEAL ON THE GROUND THAT THE APPEAL WAS FILED ON 14.03.2016 MANUALLY AND NOT ELECTRONICALLY. 2. THE LD CIT(A) ERRED IN NOT APPRECIATING THAT FILING OF APPE AL ELECTRONICALLY, INTRODUCED WITH EFFECT FROM 01.03.2016, WAS FACING TECHNICAL DIFFICULTIES INITIALLY AS THE SYSTEM INTRODUCED BY THE CBDT WAS NOT FULLY FUNCTIONAL AND SMOOTH. 3. THE LD CIT(A) ERRED IN NOT APPRECIATING THAT MANUALLY FILED APPEAL WITHIN T HE STIPULATED TIME WAS ACCEPTED BY HIS OFFICE WITHOUT ANY OBJECTION AND THEREFORE, THE LD CIT(A) SHOULD HAVE ADMITTED THIS APPEAL AND DECIDED THE ISSUES ON MERITS. 4. THE LD CIT(A) GROSSLY ERRED IN NOT APPRECIATING THAT THE ASSESSEE HAD FILED APPEAL ELECT RONICALLY ON 12.12.2016 AND HE SHOULD HAVE CLUBBED THE SAME WITH THE MANUALLY FILED APPEAL BEFORE TAKING DECISION. 5. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO ONE ANOTHER. 3. IN THIS CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS DISMI SSED THE ASSESSEE'S APPEAL ON THE GROUND THAT FROM THE CURRENT ASSESSMENT YEAR THE APPEAL B EFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS TO BE FILED IN ELECTRONIC FORM. HOWEVER , THE ASSESSEE HAS FILE D THE APPEAL IN PAPER FOR M, A ND THE APPEAL IN EL ECTRONIC FORM WAS FI L ED AFTER A LOT OF DELAY. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DISCUSS ED THE FACTS AND THE ASSEESSEE'S EXPLANATION AS UNDER : 3.2 I N THIS CASE THE APPELLANT HAD FILED APPEAL ON 14.03.2016 IN PAPER F ORM. SUBSEQUENTLY, I T WAS OBSER VED THAT RULE 45 OF THE INCOME T AX RULES H AVE BEEN MODIFIED W.E.F 01.03.2016 AND THE SAME PROVIDES THAT W.E.F. 0 1.03.2016, THE APPEALS BEFORE THE CIT (APPEAL S) SHA LL BE MAD E IN MODIFIED FO RM NO. 35, ELECTRONICALLY, WHERE THE ASSESSEE UNDER SUB RULE ( 3) OF R ULE 12 IS R EQUIRED TO FILE RETURN OF INCOME ELECTRONICALLY. FURTHER, VIDE CBDT NOTIFICATION NO. 11/2016 DATED 01.03.2016, THE FORM NO. 35, IN WHICH TH E APPEAL BEFORE THE CI T(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 FIL E APPEALS ELECTRONICALLY ON OR AFTER 01.03.20 IT DUE TO LACK OF KNOWLEDGE/TECHNICAL ISSUE AND HAD FILED PAPER APPEALS SHOULD FILE APPEALS ELECTRONICALLY TILL 15.06.2016 AND SUC H APPEALS WILL BE TREATED AS APPEAL FILED WITHIN TIME. DURING THE APPELLATE PROCEEDINGS, THE 3 ITA NO. 5475/MUM/2017 (A.Y. 2013 - 14) M/S. UNIQUE PROPERTIES & SECURITIES PVT. LTD. VS. DY. CIT APPELLANT HAS FILED COPY OF ACKNOWLEDGEMENT OF FILING OF APPEAL IN ELECTRONIC FORM ON 12.12.2016. SINCE THE APPELLANT HAD FILED APPEAL IN PAPER FORM ON 14.03.2016 AND HAD NOT FILED THE APPEAL IN ELECTRONIC FORM ON OR BEFORE 15.06.2016, SO VIDE LETTER OF THIS OFFICE DATED 31.05.2017 IN NO. CIR(AL 54/MUM/UP&SPL/2017 - 18 THE APPELLANT WAS REQUESTED TO EXPLAIN AS TO W< ,, THE PAPER APPEAL FILED ON 14.03.2016 SHOULD NOT B E TREATED AS INVALID ANA DISMISSED AS 'NOT MAINTAINABLE'. 3.4 I N RESPONSE TO THE SAME THE APPELLANT VIDE ITS LETTER DATED 12,06.2017 FILED IN TAPAL ON 13.06.2017 SUBMITTED AS UNDER. 'IN THIS REGARD, WE HAVE TO SUBMIT THAT THE APPEAL WAS FILED AGAINST T HE ASSESSMENT ORDER DATED 79.02.2016, PASSED UNDER SECTION 14313), A COPY OF WHICH WAS RECEIVED BY US ON 79.02.20J6. WE FILED THE APPEA L MANUALLY ON 14.03.2016, IN YOUR OFFICE. THIS APPEA L WAS FILED WITHIN THE STIPULATED TIME OF 30 DAYS FROM T HE DATE OF COMMUNICATION OF T HE IMPUGNED ORDER. OUR APPEAL WAS FILED IN PRESCRIBED PROFORMA AND T HE APPEAL FEE OF RS. 100 / - WAS ALSO PAID. OUR APPEAL CANNOT BE SAID TO BE NOT MAINTAINABLE. YOUR HONOUR HAS GIVEN REFERENCE TO THE NOTIFICATION OF T HE CBDT ON T HIS ISSUE . I T MAY BE SEEN THAT THE HON'B L E C B D T HAVE NOT STORED THAT THE APPEAR FILED MANUALLY AFTER 0 1 .03.20 1 6 SHALL F E E DISMISSED AS NO T MAINTAINABLE. THEY HAVE ONLY CLARIFIED T HAT AN ASSESSEE WHO IS NO T ABLE TO FILE AN APPE AL E LECTRONICALLY AFTER 01 . 03.2016, FOR SOME REASON, SHOULD FILE APPEAL ELECTRONICALLY TILL 15.06.2016. WE DID NOT FILE E - APPEAL TILL 1 2.06.2016. HOWEVER, AFTER NOTICING THE NOTIFICATION OF T HE CBDT ; WE FILED OUR APPEAL ELECTRONICALLY ON 1 2.12.20 1 6. WE HAVE TO REQUEST THAT OUR APPEAL FILED MAN UALLY ON 14.03.2016 Z NOT BE DISMISSED ON TECHNICAL GROUND BUT BE CLUBBED WITH THE APPEAL FILED ELECTRONICALLY ON 12.12.2016 AND BE CONSIDERED TOGETHER TOR DECISION. HOWEVER, IN CASE THIS REQUEST IS NOT FOUND ACCEPTABLE AND THE APPEAL FILED MANUALLY IS C ONSIDERED SEPARATE FROM THE APPEAL FILED ELECTRONIC FOR THE PURPOSE OF TAKING DECISION, THEN BOTH THE APPEALS MAY KINDLY BE DECIDED SIMULTANEOUSLY. WE SHOULD ALSO BE ALLOWED OPPORTUNITY OF BEING HEARD IN RESPECT OF *HE APPEAL FILED ELECTRONICALLY - THIS APP EAL ALSO INVOLVES ISSUE OF CONDONATION OF DELAY. ' 4. H OWEVER , THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT CONVINCED. HE DECLINED TO CONDONE THE DELAY AND CONCLUDED AS UNDER: 4 ITA NO. 5475/MUM/2017 (A.Y. 2013 - 14) M/S. UNIQUE PROPERTIES & SECURITIES PVT. LTD. VS. DY. CIT UNDER THE STATUE THE COMMISSIONER (APPEALS) HAS NO POWER TO WAIVE OR CO NDONE THE SAME. IF THE APPEAL IS NOT FILED IN PRESCRIBED FORM/MANNER THEN THE SAME HAS TO BE TREATED AS INVALID AND NOT MAINTAINABLE AND THE CIT(A) HAS NO DISCRETION TO ADMIT THE SAME AS VALID APPEAL. 4.5 IN VIEW OF THE FACTS DISCUSSED ABOVE, I AM OF THE CONSIDERED OPINION, THAT THE PRESENT PAPER APPEAL FILED BY THE APPELLANT ON 14.03.2016 IS AN INVALID APPEAL AS THE SAME WAS NOT FILED IN PRESCRIBED FORM AND VERIFIED IN PRESCRIBED MANNER AS STIPULATED UNDER THE STATUE AND HENCE THE SAME IS NOT MAINTAINABLE . HENCE, THE PRESENT PAPER APPEAL FILED ON 14.03.2016 IS TREATED AS INVALID AND NOT MAINTAINABLE AND ACCORDINGLY ALL THE GROUNDS RAISED THEREIN ARE DISMISSED, AS NOT MAINTAINABLE. THE CONTENTION OF THE APPELLANT THAT SUBSEQUENT APPEAL FILED ON 12.12.2016 I N MODIFIED/REVISED FORM NO. 35 ELECTRONICALLY SHOULD BE TREATED AS VALID AND CONDONE THE DELAY IN FILING APPEAL ELECTRONICALLY IS CONSIDERED AND I AM OF THE CONSIDERED OPINION THAT THE SAME DOES NOT REQUIRE ADJUDICATION, AS THE SAME IS NOT RELEVANT TO ADJU DICATE THE PRESENT APPEAL UNDER CONSIDERATION. 5. AGAINST THE A BOVE ORDER , THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS I FIND THAT THERE WAS REASONABLE CAUSE FOR THE DELAY IN ASSESSEE'S FILING T HE APPEAL IN ELECTRONIC FOR M. T HIS WAS THE FIRST YEAR OF THE RULE THAT APPEALS ARE TO BE FILE D ELECTRONICALLY. FURTHER, THERE IS PLEA BY THE ASSESSEE THAT THERE WERE SOME TECHNICAL GLITCHES IN THE SERVER ALSO. IN MY CONSIDERED OPINION , THE REASONABLE CAUSE ATTRIBUTED HAS CONSIDERABLE COGENCY. HENCE , I CONDONE THE DELAY IN FILING THE APPEAL IN ELECTRONIC FORM BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE LD. COMMISSIONER OF INCOME TAX (APPEALS) I S DIRECTED TO CONSIDER THE ISSUE IN APPEAL ON MERITS AND PASS A SPEAKING ORDER AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 5 ITA NO. 5475/MUM/2017 (A.Y. 2013 - 14) M/S. UNIQUE PROPERTIES & SECURITIES PVT. LTD. VS. DY. CIT 7. IN THE RESULT THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.2018 SD/ - (S HAMIM YAHYA ) / A CCO UNTANT MEMBER MUMBAI ; DATED : 05.02.2018 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI