Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0165 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s) 26 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
26-06-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
H
Assessment Year
2008-2009
Appeal Filed On
31-10-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI M. BALAGANESH , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO S. 6404 TO 6411 /MUM/20 1 7 ( / ASSESSMENT YEAR S : 2008 - 09 TO 2011 - 12 ) KIRAN GULAB BHATIA 130, SHA HEED BHAGATSINGH COLONY, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI - 400059 . / VS. ITO RANGE - 24(2)(3) ROOM NO.609, 6 TH FLOOR, PERAMAL CHAMBERS, LALBAUG, MUMBAI - 12. ./ ./ PAN/GIR NO. : AAAPB6296K ( / APPELLANT ) . . ( / RESPONDENT ) / DATE OF HEARING : 24/ 0 6/ 201 9 / DATE OF PRONOUNCEMENT : 26 /06 / 2019 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE ABOVE MENTION ED APPEAL S AGAINST THE DIFFERENT ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 36 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y S . 2008 - 09 TO 2011 - 12 IN WHICH THE PENALTY LEVIED BY THE AO HAS BEEN ORDERED TO BE CONFIRMED . ITA. NO. 6404 /M/2017 2. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 20 .0 6 .2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 36 , ASSESSEE BY : SHRI JITENDRA SINGH (AR) REVENUE BY: SHRI MANOJ KUMAR SINGH (DR ) ITA. NO S. 6404 TO 6411/MUM/2017 A.Y S . 2008 - 09 TO 2011 - 12 2 MU MBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2008 - 09 WHERE IN THE PENALTY LEVIED BY THE AO HAS BEEN ORDERED TO BE CONFIRMED 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1 THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 36, MUM BAI HEREINAFTER REFERRED TO AS 'LD. CIT(A)'] ERRED IN PASSING THE ORDER DATED 20.06.2017 DISMISSING THE APPEAL OF THE APPELLANT ON THE TECHNICAL GROUND THAT SAME IS FILED IN 'MANUAL FORM' INSTEAD OF 'E - FORM' PRESCRIBED BY THE CBDT VIDE NOTIFICATION NO. S0637(E) [NO.11/2016 (F. NO. 149/150/2015 - TPL)) DATED 01.03.2016 WITHOUT APPRECIATING THAT DUE TO SOME DIFFICULTY THE APPELLANT COULD NOT BE ABLE TO E - FILE THE APPEAL MEMO. THUS, THE ORDER PASSED BY LD. CIT(A) IS BAD - IN - LAW AND THE SAME MAY BE QUASHE D. 2. THE 14. CIT(A) FURTHER ERRED IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT PROVIDING AN APPROPRIATE OPPORTUNITY OF BEING HEARD. THUS, THE ORDER PASSED BY LD. CIT(A) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. HENCE, THE ORDER PASSED BY LD. CIT(A) IS VOID - AB - INITIO AND THE SAME MAY BE QUASHED. 3. THE LD. CIT(A) FURTHER ERRED IN CONFIRMING THE ACTION OF THE LD. A.O. IN LEVYING CONCEALMENT PENALTY ON THE ADDITION OF RS.12,61,375/ - BEING CASH DEPOSITED IN THE ACCOUNT NO. 020905000304 MAINTAI NED BY ICICI BANK TREATING THE SAME AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT WITHOUT APPRECIATING THAT THE CASH WAS DEPOSITED OUT OF CASH SALES AND ALSO FROM THE WITHDRAWAL MADE BY THE APPELLANT FROM THE OTHER BANK ACCOUNT MAINTAINED BY H IM. HENCE, THE LEVY OF CONCEALMENT PENALTY ON THE SAID ADDITION IS UNJUSTIFIED AND THE SAME MAY BE DELETED. 4. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT HAS GIVEN A BONAFIDE EXPLANATION WITH RESPECT TO THE CASH DEPOSITED IN HIS BANK ACCOUN T AND THE SAME HAS NOT BEEN FOUND TO BE FALSE. HENCE, LEVY OF CONCEALMENT PENALTY AMOUNTING TO RS.4,28742/ - UNDER SECTION 271(1)(C) OF THE ACT IS UNJUSTIFIED AND THE SAME MAY BE DELETED. ITA. NO S. 6404 TO 6411/MUM/2017 A.Y S . 2008 - 09 TO 2011 - 12 3 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, RESCIND OR AMEND ANY OF THE ABOVE GROUNDS OF APPEAL. ' 4 . AT THE VERY OUTSET , THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE TECHNICAL GROUND SPECIFICALLY ON THE BASIS OF THAT THE APPEAL HAS BEEN FILED IN MANU ALLY INSTEAD OF E - FORM PRESCRIBED BY CBDT CIRCULAR DATED 01.03.2016 WHICH IS NOT MANDATORY AND IN THIS REGARD THE HONBLE ITAT HAS BEEN DECIDED THE MATTER OF CONTROVERSY IN THE ASSESSEES OWN CASE IN ITA. NOS. 6400 TO 6403/M/2017 FOR THE A.YS. 2008 - 09 TO 2011 - 12 DATED 04.01.2018, THEREFORE, IN THE SAID CIRCUMSTANCES, THE DELAY IS ALSO LIAB LE TO BE CONDONED AND THE APPEAL AND THE APPEAL IS NOT LIABLE TO BE DISMISSED ON THE BASIS OF TECHNICAL GROUND AND IS TO BE DECIDED ON MERITS AND IS LIABLE TO BE RESTOR ED BEFORE THE CIT(A) FOR ADJUDICATING THE SAME ON MERITS IN ACCORDANCE WITH LAW. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORDER DATED 20.06.2017, WE NOTICED THAT THE CIT(A) HA S DECIDED THE APPEAL ON THE BASIS OF THE TECHNICAL GROUND THAT THE APPEAL WAS NOT FILED IN E - FORM BUT FILED MANUAL AND DISMISSED THE APPEAL WITHOUT DECIDING THE APPEAL ON MERITS. THE APPEAL WAS AGAINST THE QUANTUM WHEREAS T HE PRESENT APPEAL IS THE PENALTY APPEAL . T HE HONBLE ITAT HAS CONDONED THE DELAY AND SET ASIDE THE ORDER OF THE CIT(A) BY VIRTUE OF ORDER DATED 04.01.2018 IN ITA. NOS. 6400 TO 6403/M/2017 FOR THE A.YS. ITA. NO S. 6404 TO 6411/MUM/2017 A.Y S . 2008 - 09 TO 2011 - 12 4 2008 - 09 TO 2011 - 12 . THE RELEVANT FINDING IS HEREBY REPRODUCED AS UNDER: - 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, SO FAR AS, CONDONATION OF DELAY IS CONCERNED NO DOUBT FILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO T HE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APPEALS ARE TO BE FILED IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPROACH HAS T O BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELAY HAS OCCURRED FOR BONA - FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONCERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFUSAL TO CONDON ED THE DELAY CAN RESULT IN A MERITORIOUS MATTER THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISCARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE IN JUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 2.2. THE HONBLE APEX COURT IN A CELEBRATED DECISION IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 167 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE C OURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA - FIDE ONE, AND NOT DUE TO NEGLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH CASES. THE EXPRESSI ON SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHICH SUBSERVES THE END OF JUSTICE - THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER: - ITA. NO S. 6404 TO 6411/MUM/2017 A.Y S . 2008 - 09 TO 2011 - 12 5 3. THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE - PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS CO URT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.3. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION. 2.4. THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCOM PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DATED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD VS ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI S AIDATTA COOP - . CREDIT SOCIETY LTD. V/S ITO (ITA NO.2379/MUM/2015) ORDER DATED 15/01/2016 AND MR. NIKUNJ BAROT (PROP. ENIGMA) VS ITO (ITA NO.4887/MUM/2015) ORDER DATED 06/01/2016, WHEREIN, SUBSTANTIAL DELAY WAS CONDONED, SUPPORTS THE CASE OF THE PRESENT ASS ESSEE. HAVING MADE THE AFORESAID OBSERVATION AND VARIOUS DECISIONS DISCUSSED HEREINABOVE, INCLUDING FROM HONBLE APEX COURT, THE CIRCUMSTANCES NARRATED BY THE ASSESSEE, WHEREIN, HE HAS STATED THE REASONS WHICH CAUSED THE DELAY, THEREFORE, THE DELAY IS COND ONED. 3. SO FAR AS, THE GROUND RAISED, ON MERIT IS CONCERNED, IT WAS EXPLAINED THAT THE IMPUGNED ORDERS WERE PASSED BY THE FIRST APPELLATE AUTHORITY AND DISMISSED THE APPEAL MERELY ON TECHNICAL GROUNDS AS WERE FILED ON MANUAL FORM INSTEAD OF EFORM PRESCR IBED BY CBDT WITHOUT APPRECIATING THAT THE ASSESSEE DUE TO SOME DIFFICULTIES COULD NOT BE ABLE TO E - FILE THE APPEAL MEMOS, WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. DR CONTENDED THAT THE ASSESSEE WAS EXPECTED TO E - FILE ON PRESCR IBED FORM. 3.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT GOING INTO MUCH DELIBERATION, I AM OF THE ITA. NO S. 6404 TO 6411/MUM/2017 A.Y S . 2008 - 09 TO 2011 - 12 6 VIEW THAT MERELY ON TECHNICAL GROUNDS, THE APPEALS SHOULD NOT HAVE BEEN DISMISSED AND THE ASSESSEE SHOU LD HAVE BEEN HEARD ON MERIT. THE ASSESSEE IS A PROPRIETOR OF HEMKIRAN ELECTRONICS. ADDITIONS U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WERE MADE WHILE PASSING THE ORDER U/S 143(3) R.W.S. 147 OF THE ACT. ADMITTEDLY, THE ASSESSEE WAS EXPECTED TO FILE THE APPEALS ELECTRONICALLY AS PER CIRCULAR NO.20 AUTOMATICALLY DOES NOT LEAD TO THE CONCLUSION THAT IF DUE TO TECHNICAL REASONS, THE SAME IS FILED MANUALLY, IT WILL BE TREATED NOT MAINTAINABLE. IF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT SATISFIED WITH MANUAL FILING, NOTHING PREVENTED HIM TO HEAR THE PRACTICAL DIFFICULTIES OF THE ASSESSEE AND THEN ADJUDICATE THE SAME. THE APPEALS WERE FILED ON MANUAL FORM ON 13/02/2017. EVEN OTHERWISE, AS PER ARTICLE - 265 OF THE CONSTITUTION OF INDIA ONLY DUE ARE TO BE LEVIED/COLLECTED, THEREFORE, WITHOUT GOING INTO MUCH DELIBERATION, THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IS DIRECTED TO ADJUDICATED THE APPEALS OF THE ASSESSEE ON MERIT AFRESH. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTH ER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE HIS CLAIM. THUS, ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 5. ON APPRAISAL OF THE ABOVE MENTIONED FINDING, WE NOTICED THAT THE DELAY HAS ALREADY BEEN CONDONED AND THE APPEAL WHICH HAS BEEN DECIDED ON TECHNICAL GROUND BY CIT(A) HAS BEEN RESTORED TO THE CIT(A) TO DECIDE THE MATTER AFRESH B Y GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE FINDING ABOVE IS QUITE APPLICABLE TO THE FACTS OF THE PRESENT CASE BEING THE PRESENT CASE IS TH E PENALTY APPEAL OF THE QUANTUM DECIDED BY THE HONBLE ITAT (SUPRA). SINCE THE MATTER OF CONTROVERSY HAS DULY BEEN COVERED BY THE ABOVE MENTIONED ORDER, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND CONDONE THE DELAY AND RESTORED THE MATTER BEFORE THE CIT( A) TO DECIDE AFRESH ON MERITS B Y GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ITA. NOS. 6405 TO 6411 /M/2017 ITA. NO S. 6404 TO 6411/MUM/2017 A.Y S . 2008 - 09 TO 2011 - 12 7 6. THE FACTS OF THE PRESENT CASE S ARE QUITE SIMILAR TO THE FACTS OF THE CASE AS NARRATED ABOV E WHILE DECIDING IN ITA. NO.6404 /M/2017, THEREFORE, THERE IS NO NEED TO REPEAT THE SAME. HOWEVER, THE FIGURE IS DIFFERENT. THE MATTER OF CONTROVERSY IN THESE APPEALS IS ALSO THE SAME , THEREFORE, IN THE SAID CIRCUMSTANCES, THE FINDING OF THE CIT(A) HAS BEEN ORDERED TO BE SET ASIDE AND ALL THE APPEALS ARE HEREBY RESTORE D TO THE CIT(A) TO DECIDE THE MATTER OF CONTR OVERSY AFRESH ON SIMILAR LINES AS DECIDED BY US ABOVE IN ITA. NO.6404 /M/2017 . ACCORDINGLY, WE SET ASIDE THE FINDING OF THE CIT(A) ON THESE ISSUES AND RESTORED THE ISSUES BEFORE THE CIT(A) TO DECIDE THE MATTER OF CONTROVERSY AFRESH ACCORDINGLY . 7 . IN THE RESULT, THE APPEAL S FILED BY THE ASSESSEE ARE HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 26 /06/ 2019 . SD/ - SD/ - ( M. BALAGANESH ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 26 /06/ 2019 . V IJAY ITA. NO S. 6404 TO 6411/MUM/2017 A.Y S . 2008 - 09 TO 2011 - 12 8 / 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
