SHAHENSHAH H.M. RAZA SYAD, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-25(1), MUMBAI

ITA 6382/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9900 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 30-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA
• Assessee Lawyers: MRS RENU KAPOOR
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

P A G E | 1 ITA NO. 6382/MUM/2017 AY 2013 - 14 SHAHENSHAH H.M. RAZA SYAD VS. ASST. COMMISSIONER OF INCOME TAX C.25(1) IN THE INCOME TAX APPELLATE TRIBUNAL ' G ' BENCH, MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO. 6382/MUM/2017 (ASSESSMENT YEAR: 2013 - 14 ) SHAHENSHAH H.M. RAZA SYAD A - 12/8, GAJANAN COLONY, SHIVAJI NAGAR, GOVANDI, MUMBAI - 400 043 VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE - 25(1), ROOM NO. 402, 4 TH FLOOR, C - 10, PRATYAKSHKAR BHAVAN, BKC, BANDRA (EAST), MUMBAI - 400 051 PAN APOPS5564E ASSESSEE REVENUE ASSESSEE BY: MRS. RENU KAPOOR, A.R REVENUE BY: SHRI NISHANT SAMAIYA, D.R DATE OF HEARING: 25.09.2018 DATE OF PRONOUNCEMENT: 2 6 .09.2018 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY THE ASSESSEE FOR A . Y 2013 - 14 IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 3 7, MUMBAI, DATED 27.09.2017 , WHICH IN TURN ARISES FROM THE ASSESSMENT ORDER PASSED UNDER SEC. 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), DATED 23 .03.2016. THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAS RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DISMISSING THE APPEAL FILED BY THE ASSESSEE IN LIMINE. 2. THE ASSESSEE CRAVES TO ADD, ALTER OR AMEND THE ABOVE GROUND OF APPEAL. 2. BRIEFLY STATED, THE ASSESSEE WHO IS ENGAGED IN THE BUSINESS OF TRANSPORT HAD FILED HIS ORIGINAL RETURN OF INCOME FOR A . Y 2013 - 14 ON 30.09.2013, D ECLARING TOTAL INCOME OF RS.28,90,82 0/ - . T HE CASE OF THE P A G E | 2 ITA NO. 6382/MUM/2017 AY 2013 - 14 SHAHENSHAH H.M. RAZA SYAD VS. ASST. COMMISSIONER OF INCOME TAX C.25(1) ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER SEC. 143(2) OF THE ACT. THE A.O AFTER NECESSARY DELIBERATIONS ASSESSED TH E INCOME OF THE ASSESSEE AT RS.2,00,08,250 / - . 3. AGGRIEVED, THE ASSESSEE ASSAILED THE ASSESSMENT BEFORE THE CIT(A). THE CIT(A) NOTICED THAT THE ASSESSEE HAD FILED THE APPEAL MANUALLY IN PA PER FORM ON 18 .04 .2016 , AGAINST THE ORDER DATED 23 .03.2016 PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX - 25 (1), MUMBAI UNDER SEC. 143(3) FOR A.Y 2013 - 14. THE CIT(A) OBSERV ED THAT AS PER NOTIFICATION NO. S.O 637(E), DATED 1 ST MARCH, 2016, ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, NEW DELHI , RULE 45 OF THE INCOME TAX RULE S , 1962 WAS AMENDED, AND IT WAS THEREAFTER MANDATORY FOR ALL THE PERSONS WHO WERE REQUIRE D TO FURNISH T HEIR RETURN OF INCOME ELE CTRONI CALLY TO E - FILE THEIR APPEALS BEFORE THE APPELLATE C OMMISSIONER , WITH EFFECT FROM 01.03.2016. IN THE BACKDROP OF HIS A FORESAID OBSERVATIONS, THE CIT(A ) BEING OF THE VIEW THAT THE APPEAL WHICH WAS MANUALLY FILED BY THE ASSESSE E IN PAPER FORM WAS NOT IN CONFORMITY WITH RULE 12(3) OF THE INCOME TAX RULE S, 1962, THUS , THE SAME WAS NOT MAINTAINABLE AND COULD NOT BE ADMITTED . ACCORDINGLY , THE CIT(A) DISMISS ED THE APPEAL FILED BY THE ASSESSEE IN LIMINE. 4. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER PASSED BY THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A .R) OF THE ASSESSEE SUBMITTED, THAT THE MANUAL FILING OF THE APPEAL BY THE ASSESSEE WAS ON ACCOUNT OF AN INADVERTENT OVERSIGHT ON THE PART OF THE ASSESSEE OF THE AMENDED RULES, WHICH IN ITSELF WERE IN THEIR INFANCY STAGE . IT WAS SUBMITTED BY THE LD. A.R THAT THE ASSESSEE ON LEARNING OF HIS AFORESAID MISTAKE, HAD E - FILED THE APPEAL ON 19.09.2017 . F URTHER, IT WAS SUBMITTED BY THE LD. AR, THAT THE TRIBUNAL AFTER DELIBERATING ON THE BONAFIDES OF THE ASSESSEE AS REGARDS THE NON - COMPLIANCE OF RULE 45 OF THE INCOME TAX RULES, 1962, WHICH MANDATED COMPULSORY E - FILING OF APPEALS BEFORE THE APPELLATE COMMISS IONER WITH EFFECT FROM 01.03.2016, HAD IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONER S , MUMBAI, VS. ITO (E) - 1(2), MUMBAI [ITA NO. 7134 /MUM/2017, DATED 04.05.2018] IN ALL FAIRNESS AND IN THE VERY INTEREST OF JUSTICE HAD RESTORED THE APPEAL TO THE F ILE OF THE CIT(A), P A G E | 3 ITA NO. 6382/MUM/2017 AY 2013 - 14 SHAHENSHAH H.M. RAZA SYAD VS. ASST. COMMISSIONER OF INCOME TAX C.25(1) AND AFFORDED AN OPPORTUNITY TO THE ASSESSEE TO ELECTRONICALLY FILE THE APPEAL . IT WAS SUBMITTED BY THE LD. A.R , THAT NOW WHEN THE ASSESSEE HAD ALREADY ELECTRONI CALLY FILED THE APPEAL BEFORE THE CIT(A), THUS, THE APPEAL MAY BE RESTORED TO HIS FILE , WITH A DIRECTION TO DISPOSE OF F THE SAME ON MERITS. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D . R) RELIED ON THE ORDER OF THE CIT(A). 5. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES OF BOTH THE PARTIES, PER USED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE APPEAL OF THE ASSESSEE HAD BEEN DISMISSED BY THE CIT(A) , ON THE GROUND THAT THE SA ME NOT HAVING BEEN FILED ELECTRONI CALLY , WAS THUS , NOT IN CONFORMITY WITH RULE 12(3) OF THE INCOME TAX RULE S , 1962. WE HAVE DELIBERATED AT LENGTH ON THE ISSUE UNDER CONSIDERATION AND FIND THAT THE ISSUE HEREIN INVOLVED IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONER, MUMBAI, V S. ITO (E) - 1(2), MUMBAI [ITA NO. 7134/MUM/2017, DATED 04.05.2018]. WE FIND THAT THE TRIBUNAL IN THE AFOREMENTIONED CASE , HAD OBSERVED THAT THE DEFAULT ON THE PART OF TH E ASSESSEE IN MANUALLY FILING THE APPEAL IN PAPER FORM WAS MERELY A TECHNICAL DEFECT, WHICH COULD NOT BE PREFERRED AND ALLOWED TO OVERSHADOW THE CAUSE OF SUBSTANTIAL JUSTICE. THE TRIBUNAL IN ITS AFORESAID ORDER , HAD OBSERVED AS UNDER: 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTI ES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY THE REVENUE AUTHORITIES. FROM THE RECORDS WE NOTICED THAT ELECTRONICALLY FILING OF THE APPEALS WAS INTRODUCED FOR THE FIRST TIME VIDE RULE 45 OF I.T. RULES 1962, MANDATIN G COMPULSORY E - FILING OF APPEALS BEFORE APPELLATE COMMISSIONER WITH EFFECT FROM 1 ST MARCH 2016. WE NOTICED THAT IN THIS RESPECT, THERE IS NO CORRESPONDING AMENDMENT IN ANY OF THE PROVISIONS OF THE SUBSTANTIVE LAW I.E I.T. ACT, 1961. AS PER THE FACTS OF TH E PRESENT CASE, THE ASSESSMENT IN THE ABOVE CASE WAS COMPLETED U/S 143(3) OF THE I.T. ACT 1961. HOWEVER THE ASSESSEE HAS FILED APPEAL BEFORE LD. CIT(A) IN PAPER FORM AS PRESCRIBED UNDER THE PROVISIONS OF I.T. ACT 1961 WITHIN THE PRESCRIBED PERIOD OF LIMITA TION. BUT THE SAME WAS DISMISSED BY LD. CIT(A) BY HOLDING THAT ASSESSEE HAD NOT FILED APPEAL THROUGH ELECTRONIC FORM, WHICH IS MANDATORY AS PER I.T. RULES 1962. AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION, WE FIND THAT HONBLE SUPREME COURT IN TH E CASE OF STATE OF PUNJAB VS. SHYAMALAL MURARI AND OTHERS REPORTED IN AIR 1976 (SC) 1177 HAS CATEGORICALLY HELD THAT COURTS SHOULD NOT GO STRICTLY BY THE RULEBOOK TO DENY JUSTICE TO THE DESERVING LITIGANT P A G E | 4 ITA NO. 6382/MUM/2017 AY 2013 - 14 SHAHENSHAH H.M. RAZA SYAD VS. ASST. COMMISSIONER OF INCOME TAX C.25(1) AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. IT HA S BEEN REITERATED BY THE HONBLE SUPREME COURT THAT ALL THE RULES OF PROCEDURE ARE HANDMAID OF JUSTICE. THE LANGUAGE EMPLOYED BY THE DRAFTSMAN OF PROCEDURAL LAW MAY BE LIBERAL OR STRINGENT, BUT THE FACT REMAINS THAT THE OBJECT OF PRESCRIBING PROCEDURE IS T O ADVANCE THE CAUSE OF JUSTICE. THE HONBLE APEX COURT HAS SAID IN AN ADVERSARIAL SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY OF PARTICIPATING IN THE PROCESS OF JUSTICE DISPENSATION. THE HONBLE SUPREME COURT IN ITS JUDGEMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF RANI KUSUM VRS. KANCHAN DEVI, REITERATED THAT, A PROCEDURAL LAW SHOULD NOT ORDINARILY BE CONSTRUED AS MANDATORY, AS IT IS ALWAYS SUBSERVIENT TO AND IS IN AID OF JUSTICE. ANY IN TERPRETATION, WHICH ELUDES OR FRUSTRATES THE RECIPIENT OF JUSTICE, IS NOT TO BE FOLLOWED. FROM THE FACTS OF THE PRESENT CASE, WE GATHERED THAT THE ASSESSEE HAD ALREADY FILED THE APPEAL IN PAPER FORM, HOWEVER ONLY THE E - FILING OF APPEAL HAS NOT BEEN DONE BY THE ASSESSEE AND ACCORDING TO US, THE SAME IS ONLY A TECHNICAL CONSIDERATION. IN THIS RESPECT, WE RELY UPON THE JUDGEMENT OF HONBLE SUPREME COURT, WHEREIN THE HONBLE SUPREME COURT HAS REITERATED T HAT IF IN A GIVEN CIRCUMSTANCES, THE TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER , THEN IN THAT EVENTUALITY THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED AND CANNOT BE OVERSHADOWED OR NEGATIVE BY SUCH TECHNICAL CONSIDERATIONS. APART FROM ABOVE WE HAVE ALSO NOTICED THAT THE COORDINATE BENCH OF HONBLE ITAT DELHI BENCH IN APPEAL ITA NO. 6595/DEL/16 IN CASE TITLED GURINDER SINGH DHILLON VRS. ITO HAD RESTORED THE MATTER TO THE FILE OF LD. CIT(A) UNDER IDENTICAL CIRC UMSTANCES WITH A DIRECTION DO DECIDE APPEAL AFRESH ON MERIT, AFTER CONDONING THE DELAY, IF ANY. SINCE IN THE PRESENT CASE, WE FIND THAT APPEAL IN THE PAPER FORM WAS ALREADY WITH LD. CIT(A), THEREFORE IN THAT EVENTUALITY THE LD. CIT(A) OUGHT NOT TO HAVE D ISMISSED THE APPEAL SOLELY ON THE GROUND THAT THE ASSESSEE HAS NOT FILED THE APPEAL ELECTRONICALLY BEFORE THE APPELLATE COMMISSIONER. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AS WELL AS THE CASE LAWS DISCUSSED AND RELIED UPON ABOVE, WE ARE OF THE CONSI DERED VIEW THAT THE CAUSE OF JUSTICE WOULD BE SERVED IN CASE, WE SET ASIDE THE ORDERS OF LD. CIT(A) & ALLOW THE PRESENT APPEAL. WHILE SEEKING THE COMPLIANCE, WE DIRECT THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY WITHIN 10 DAYS FROM THE DATE OF RECEIPT O F THIS ORDER. IN CASE, THE DIRECTIONS ARE FOLLOWED THEN IN THAT EVENTUALITY, THE DELAY IN E - FILING THE APPEAL SHALL STAND CONDONED. LD. CIT(A) IS FURTHER DIRECTED TO CONSIDER THE APPEAL FILED BY THE ASSESSEE ON MERITS BY PASSING A SPEAKING ORDER. RESULTANT LY, WE ALLOW THE APPEAL FILED BY THE ASSESSEE. 7. IN THE NET RESULT THE APPEAL FI LED BY THE ASSESSEE IS ALLOWED. WE HAVE PERUSED THE AFORESAID ORDER OF THE TRIB UNAL AND FINDING OURSELVES AS BEING IN AGREEMENT WITH THE VIEW THEREIN TAKEN, THUS , RESPECTFULLY FOLLOW P A G E | 5 ITA NO. 6382/MUM/2017 AY 2013 - 14 SHAHENSHAH H.M. RAZA SYAD VS. ASST. COMMISSIONER OF INCOME TAX C.25(1) THE SAME. IN THE BACKDROP OF THE FACTS INVOLVED IN THE CASE BEFORE US, THE APPEAL IN ALL FAIRNESS AND IN THE VERY INTEREST OF JUSTICE IS RESTORED TO THE FILE OF THE CIT(A). THE CIT(A) IS DIRECTED TO CONSIDER THE APPEAL WHICH HAD BEEN E - FILED BY THE ASSESSEE , AS HAVING BEEN FILED ON THE DATE ON WHICH THE SAME WAS MANUALLY FILED IN PAPER FORM VIZ. 18.04.2016 , AND DISPOSE OFF THE SAME ON MERITS BY WAY OF A SPEAKING ORDER . NEEDLESS TO SAY , THE CIT(A) WHILE DISPOSING O F F THE APPEAL SHALL AFF ORD A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ORDER OF THE CIT(A) IS SET ASIDE IN TERMS OF OUR AFORESAID OBSERVATIONS. 6. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 6 . 09.2018 S D / - S D / - ( B.R.BASKARAN ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 26 .09.2018 PS. ROHIT / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 6 ITA NO. 6382/MUM/2017 AY 2013 - 14 SHAHENSHAH H.M. RAZA SYAD VS. ASST. COMMISSIONER OF INCOME TAX C.25(1)