ANITAS EXPORTS PVT. LTD., MUMBAI V. ITO 9(1)(1), MUMBAI

ITA 618/MUM/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9908 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Bonafide belief
• Section: 148; 143(3); 133A; 80IC; 80IC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A”, MUMBAI BEFORE SHRI B.R. BASKARAN (ACCOUNTANT MEMBER) & SMT. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA No. 618/MUM/2022 (Assessment year : 2008-09) Anitas Exports Private Limited 340, Laxmi Plaza, Laxmi Industrial Estate, New Link Road, Andheri (W), Mumbai-400 053 PAN : AAFCA5386H vs ITO 9(1)(1) 203, 2 nd Floor, Aayakar Bhavan M.K. Road, Mumbai-400 020 APPELLANT RESPONDENT Assessee represented by Shri Satish Mody Department represented by Shri Manoj Sinha (SR AR) Date of hearing 04/07/2022 Date of pronouncement 06/07/2022 ORDER Per Kavitha Rajagopal (JM): This appeal has been filed by the assessee as against the order of Learned Commissioner of Income-tax (Appeals)-49, Mumbai dated 11/02/2022 for the assessment year 2008-09. 2. The following grounds are raised by the assessee:- GROUND NO.l The learned CIT(A) erred in upholding the order passed by the learned AO, Ward 9(1)(1), Mumbai, under section 143(3) rws 147 of the Act, even though it is capricious in nature and has been made ignoring the established and undisputed facts. The said order is contrary to the facts and circumstances of the case and the applicable provisions of the Act. GROUND NO.2 The learned CIT(A) erred in upholding the reopening proceedings initiated u/s.147 of the Income Tax Act, though the same was contrary to the facts and circumstances of the case and the evidence available on record. GROUND NO.3 2 ITA No. 618/MUM/2022 The learned CIT(A) erred in upholding the order passed by the Ld AO u/s. 143(3) rws 147 of the Act, though the same unjust and passed violating the principles of natural justice. GROUND N0.4 The learned CIT(A) has erred in upholding the additions made by the Ld AO to the total income of the appellant under Income from Other Sources of Rs.9,07,77,997/-, which is contrary to the facts and circumstances of the case and made without any basis whatsoever. GROUND NO.5 The learned C1T(A) has erred in upholding the disallowance of deductions u/s. 80IC of the Income Tax Act, 1961 to the total income of the assessee. The same is unjust, patently wrong and has been made in total disregard to the facts of the case and applicable provisions of the Act. GROUND NO.6 The Learned CIT(A) erred in dismissing the appeal on account of delay in filing appeal in electronic form, whose manual paper form was filed before the CIT(A)-16, Mumbai within 30 days of passing the Assessment Order. GROUND NO.7 The learned CIT(A) has erred in upholding the issuance of penalty notice u/s 271(l)(c) of the Act passed by the learned AO, and the same must be quashed. 3. The brief facts are that the assessee is a private limited company dealing with manufacturing of medical equipments and machineries. The assessee filed its return of income on 30/09/2008 declaring total income at Nil after claiming deduction under section 80IC of Rs.11,76,35,730/-. The case was selected for scrutiny and assessment order under section 143(3) was passed on 28/03/2016. The assessment was subsequently reopened under section 148 of the Act on 30/03/205 following the survey conducted by the Investigation Wing under section 133A of the Act. The assessment was completed under section 143(3) r.w.s. 147 of the Act whereby certain receipts were not eligible for deduction under section 80IC and was taxed in the hands of the assessee. Aggrieved by the said order, the assessee was in appeal before the Ld.CIT(A), who dismissed the appeal of the assessee for the reason that the assessee has filed the appeal manually on 26/04/2016 whereas the same was required to be e-filed as per Rules 45 & 46 of I.T. Rules, 1962 and the same was treated as non est and dismissed with the liberty given to the assessee to e-file the appeal 3 ITA No. 618/MUM/2022 alongwith an application for condonation of delay. The said order was passed on 15/05/2018. The assessee did not challenge the order of Ld.CIT(A). Immediately thereafter, the assessee e-filed the appeal before the Ld.CIT(A) on 18/06/2018, which resulted in a delay of more than two years from the date of assessment order,which the Ld.CIT(A) has dismissed the said appeal on the ground that the assessee has not shown good and sufficient reasons for the delay in filing the appeal within the prescribed period. The Ld.CIT(A) has further stated that there was no “sufficient cause” in terms of section 249(3) of the Act for not presenting the appeal within the prescribed period. Further aggrieved, the assessee is in appeal before us. 4. During the appellate proceedings, the Ld.AR contended that the assessee filed the appeal manually on 26/04/2016 as against the assessment order dated 28/03/2016 which was well within the prescribed time. Since the assessee had filed the appeal manually, it was under a bonafide belief that it will be adjudicated on merits. Since it was dismissed on technical grounds, the assessee filed appeal electronically rectifying the mistake. Hence, it is not a case that assessee has filed appeal belatedly. The Ld.DR vehemently opposed the same stating that there was no sufficient cause to condone the delay. 5. Having heard both the representatives and perused the materials on record, it is evident that the assessee had filed appeal manually on 26/04/2016 against the assessment order dated 28/03/2016 before the Ld.CIT(A). It is pertinent to point out that the Ld.CIT(A) has dismissed the appeal with a liberty given to the assessee to e-file the same with a request for condonation of delay. The said order was passed after a lapse of two years from the date of filing of the manual appeal. The assessee was of the view that the appeal was filed within the prescribed period without considering the fact that it is 4 ITA No. 618/MUM/2022 mandatory to e-file the appeal within the prescribed period. Subsequently, the assessee e-filed appeal only on 18/06/208 after the dismissal of appeal by Ld.CIT(A). We observe that the delay caused in filing the appeal was genuine as the assessee had filed the appeal manually within the prescribed period. We do not find any justification in not condoning the delay by the Ld.CIT(A)and in our view there was sufficient cause for the delay. Accordingly, we condone the delay in filing the appeal electronically. Since the appeal was not decided on merits by the Ld.CIT(A), we remand the matter to the file of the Ld.CIT(A) for deciding the appeal on merits. 6. In the result, appeal is treated as allowed, for statistical purpose. Order pronounced in the open Court on 06 July, 2022. sd/- sd/- (B.R. BASKARAN ) (KAVITHA RAJAGOPAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 06/07/2022 Pavanan Copy of the Order forwarded to : 1. The Appellant , 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai