R.R.ENTERPRISES, NAVI MUMBAI V. ACIT 17(3), MUMBAI

ITA 6498/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3662 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 14-10-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GURUBINDER SINGH
• Keywords: Reason to believe; Set aside
• Section: 143(3); 143(1); 250; 13; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI S RIFAUR RAHMAN, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 6498/MUM/2019 (A.Y: 2009-10) R.R ENTERPRISES, 123 GROUND FLOOR, SWAMI SAMARTH CHS LTD., SECTOR 12, KHARGHAR, NAVI MUMBAI 410210. VS. ACIT 17(3) AAYAKAR BHAVAN, MK ROAD, MUMBAI PAN/GIR NO. : AAHFR6392M APPELLANT .. RESPONDENT APPELLANT BY : SHRI AJAY SINGH, AR RESPONDENT BY : SHRI GURUBINDER SINGH, DR DATE OF HEARING 13 .0 5 .2021 DATE OF PRONOUNCEMENT 24 .0 5 .2021 / O R D E R PER PAVAN KUMAR GADALE, JM: THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -28 MUM BAI, PASSED U/S. 143(3) R.W.S 147 AND 250 OF THE INCOME TAX ACT, 1961.THE ASSESSEE HAS RAISED THE FALLOWING GR OUNDS OF APPEAL: I. MANUALLY FILED APPEAL HELD TO BE NOT MAINTAINABLE: ITA NO. 6498/MUM/2019 RR ENTERPRISES, MUMBAI - 2 - 1) THE ID CIT(A) ERRED IN DISMISSING THE APPEAL OF THE APPELLANT AS NOT MAINTAINABLE ON THE GROUND THAT THE SAID APPEAL WAS NOT FILED IN ELECTRONICALLY FORM, WITHOUT APPRECIATING THAT ON 31.03.2016 ASSESSEE HAD MANUALLY FILED APPEAL BEFOR E CIT(A) WHICH WAS DULY ACCEPTED AND ACKNOWLEDGED, THEREAFTE R AN ORDER DT 30/1/2017 WAS ALSO PASSED FOR FILING REVIS ED GROUND ON FURTHER HEARINGS PAPER BOOK, WRITTEN SUBMISSION, CASE LAWS WERE FILED AND MATTER WAS HEARD . INFACT ON RECEIPT OF SHOW CAUSE NOTICE ON 4/12/2018 THE ASSESSEE IMMEDIATELY RECTIFIED THE DEFECT BY FILING A ELECTRONIC APPEAL AND SAME W AS INTIMATED TO THE CIT(A),THEREFORE THE APPEAL WAS MAINTAINABLE 2) THE ID CIT(A) FAILED TO APPRECIATE THAT RULE 45 OF THE INCOME TAX RULES WHICH MANDATES COMPULSORY E-FILING OF APP EALS BEFORE THE CIT(A) W.E.F. 01.04.2016 IS A PROCEDURAL AND TECHNICAL REQUIREMENT. IT CANNOT DEFEAT THE STATUTO RY RIGHT OF AN ASSESSEE TO FILE AN APPEAL. AN ASSESSEE WHO HAS FIL ED THE APPEAL IN PAPER FORMAT SHOULD BE PERMITTED TO MAKE GOOD THE DEFAULT AND TO FILE AN APPEAL ELECTRONICALLY RATHER THAN DISMISSING THE APPEAL AS NOT MAINTAINABLE. 3) THE ASSESSEE CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OR ALL THE ABOVE GROUNDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESS EE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS AS BUILDER AND DEVELOPER. THE ASSESSEE HAS FILED THE RETURN OF INC OME ON 29.09.2009 FOR THE A.Y 2009-10 WITH A TOTAL INCOME OF RS. 20,58,310/-,THE RETURN OF INCOME WAS PROCESSED U/S 143(1) OF THE ACT. THE CASE WAS SELECTED FOR SCRUTI NY UNDER THE CASS AND THE ASSESSMENT WAS COMPLETED U/ S 143(3) OF THE ACT WITH THE TOTAL INCOME OF RS. 35,9 9,260/- ITA NO. 6498/MUM/2019 RR ENTERPRISES, MUMBAI - 3 - ON 12.12.2011. SUBSEQUENTLY, THE A.O FOUND THAT THE RE ARE DISCREPANCIES IN THE ASSESSMENT OF INCOME ON AC COUNT OF WORKING PROGRESS, UNSOLD FLATS AND IN SALE PRICE AND COST PRICE AS PER THE AGREEMENT. THEREFORE, THE A.O . HAS REASON TO BELIEVE THAT THE INCOME HAS ESCAPEMENT ASSESSMENT AND NOTICE U/S 148 OF THE ACT WAS ISSUED . IN COMPLIANCE, THE LD. AR OF THE ASSESSEE APPEARED FRO M TIME TO TIME AND FILED THE DETAILS. WHEREAS, THE A. O ON PERUSAL OF THE INFORMATION FILED FOUND THAT THERE I S NO PROPER RECOGNITION OF REVENUE IN RESPECT OF THE FLA TS IN CONSTRUCTION AND MADE ADDITION OF RS.54,47,415/- AN D DETERMINED THE TOTAL INCOME OF RS.90,46,680/-AND PA SSED THE ORDER U/S 143(3) R.W.S 147 OF THE ACT ON 09.03. 2016. 3. AGGRIEVED BY THE ORDER, THE ASSESSES HAS FILED A N APPEAL WITH THE CIT(A). IN THE APPELLATE PROCEEDIN GS THE CIT(A) FOUND THAT AS PER THE CBDT NOTIFICATION ISSU ED EFFECTIVE FROM1.03.2016 IT IS MANDATORY FOR THE AS SESSEE TO FILE THE APPEAL ELECTRONICALLY BUT THE ASSESSEE HAS MANUALLY FILED THE APPEAL. THE CIT(A) CONSIDERED T HE WRITTEN SUBMISSIONS AND THE EXPLANATIONS OF THE AS SESSEE AND OBSERVED THAT THE ASSESSEE HAS FILED AN APPEAL MANUALLY WHICH IS NOT COMPLIANCE WITH THE CBDT NOTIFICATION AND FURTHER WHEN THE APPELLATE PROCEE DINGS ITA NO. 6498/MUM/2019 RR ENTERPRISES, MUMBAI - 4 - ARE PENDING THE ASSESSEE FIRM HAS ALSO FILED THE APPEAL ELECTRONICALLY ON 27.12.2018. THEREFORE, THE CIT(A ) HAS DISMISSED THE ASSESSEE MANUAL APPEAL . AGGRIEVED BY THE CIT(A) ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE HONBLE TRIBUNAL. 3. AT THE TIME OF HEARING, THE LD.AR SUBMITTED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AS IT WAS FILED MANUALLY AND IS NOT MAINTAINABLE. THE LD.AR EXPLAINED THE TECHNICAL DIFFICULTIES IN FILING THE APPEAL ELECTRONICALLY DUE TO AMENDMENT WHICH HAS COME W.E. F 01.03.2016 AS PER THE RULE 45 OF THE IT RULES. THE LD.AR EMPHASIZED FOR ONE MORE OPPORTUNITY BE PROVIDED TO SUBSTANTIATE THE CASE ON MERITS AND PRAYED FOR ALLO WING THE ASSESSEE APPEAL. CONTRA, THE LD. DR RELIED ON T HE ORDER OF THE CIT(A) . 4. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ONLY DISPUTED ISSUE AS ENVI SAGED BY THE LD. AR THAT THE ASSESSEE HAS FILED THE APPEA L MANUALLY FOR THE A.Y 2009-10 ON 31.03.2016. WHEREAS , THE ASSESSEE HAS TO FILE THE APPEAL ELECTRONICALLY W.E.F. 01.03.2016 AS PER RULE 45 OF IT RULES. FURTHER, WE FIND ITA NO. 6498/MUM/2019 RR ENTERPRISES, MUMBAI - 5 - THAT AS PER THE AMENDMENT AND PROCEDURE LAID DOWN UNDER RULE 45 & 46 OF THE INCOME TAX RULES, 1962 W.E.F. 01.03.2016. THE APPEAL IN FORM NO.35 HAS TO BE FILED ELECTRONICALLY, WHEREAS THE ASSESSEE HAS F ILED THE APPEAL IN PAPER FORM. FURTHER, THE CIT(A) IN HIS ORDER OBSERVED THAT THE ASSESSEE HAS FILED THE APPE AL ELECTRONICALLY ON 27.12.2018 IN THE COURSE OF HEARI NG PROCEEDINGS BEFORE THE APPELLATE AUTHORITIES. THE ASSESSEE HAS FACED THE TECHNICAL DIFFICULTIES EARLI ER IN FILING THE APPEAL ELECTRONICALLY. THE APPELLATE AUTHORITY HAS TREATED THE APPEAL AS NOT MAINTAINABL E AND DISMISSED. WE HAVE CONSIDERED THE FACT OF TECHNICALITIES IN FILING THE APPEAL ELECTRONICALLY AND THE AMENDMENT EFFECTIVE FROM 01.03.2016. ACCORDINGLY, TO MEET THE ENDS OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT( A) AND RESTORE THE DISPUTED ISSUE TO THE FILE OF THE CIT(A) TO ADJUDICATE AFRESH ON MERITS ALONG WITH T HE APPEAL FILED ELECTRONICALLY AND THE ASSESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING AND SHALL COOPERATE IN SUBMITTING THE INFORMATION AND COMPLY WITH APPEAL FILLING RULES FOR EARLY DISPOSAL OF APP EAL ITA NO. 6498/MUM/2019 RR ENTERPRISES, MUMBAI - 6 - AND ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE FO R STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.05.2021 SD/- SD/- ( S RIFAUR RAHMAN ) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 24.05.2021 KRK, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) 4. ( ) / CONCERNED CIT 5. !!' , $ % , / DR, ITAT, MUMBAI 6. () * + / GUARD FILE. / BY ORDER, ! //TRUE COPY// 1. ( ASST. REGISTRAR) ITAT, MUMBA I