DORABJI TATA TRUST, MUMBAI V. ITO(EXEMPTION)-2(3), MUMBAI

ITA 662/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6177 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.662/M/2019 ASSESSMENT YEAR: 2010-11 M/S. SIR DORABJI TATA TRUST, BOMBAY HOUSE, HOMI MODY STREET, MUMBAI - 400001 PAN: AAATS0494G VS. INCOME TAX OFFICER (EXEMPTIONS)-2(3), (NOW ASSESSED BY THE DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS)- 2(1), 5 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400012 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SUKHSAGAR SYAL, A.R. REVENUE BY : SHRI SUSHIL KUMAR MISHRA, D.R. DATE OF HEARING : 09.07.2021 DATE OF PRONOUNCEMENT : 23.07.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 28.11.2018 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE VAR IOUS GROUNDS OF APPEAL IS AGAINST THE DISMISSING THE AP PEAL OF THE ASSESSEE BY LD CIT(A) ON THE GROUND THAT ASSESSEE H AS NOT FILED THE APPEAL ELECTRONICALLY WITHIN THE DUE TIME. ITA NO.662/M/2019 M/S. SIR DORABJI TATA TRUST 2 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED A PPEAL BEFORE THE LD. CIT(A) IN MANUAL FORM ON 02.05.2016 AGAINST THE ASSESSMENT ORDER DATED 22.03.2016 FRAMED UNDER SECT ION 143(3) READ WITH SECTION 147 OF THE ACT. THE LD. CIT(A), AFTER REFERRING TO THE NOTIFICATION NO.SO637(E)/[NO.11/2016 (F.NO.1 49/150- TPL)], DATED 01.03.2016 AND CIRCULAR NO.20/2016 DAT ED 26.05.2016, OBSERVED THAT ASSESSEE HAS NOT FILED TH E APPEAL ELECTRONICALLY BY 15.06.2016 WHICH IS THE LAST DATE FOR FILING THE APPEAL IN TERMS OF THE AFOREMENTIONED NOTIFICATION/ CIRCULAR. THE LD. CIT(A) ALSO NOTED THAT ASSESSEE HAS FILED APPEA L IN AN ELECTRONICALLY ON 22.11.2018 WHICH DELAYED BY MORE THAN 29 MONTHS. THE LD. CIT(A) FINALLY DISMISSED THE APPEA L OF THE ASSESSEE BY HOLDING THAT THE APPEAL WAS TO BE MANDA TORILY FILED ELECTRONICALLY IN THE FIRST INSTANCE AS PER THE AME NDED PROVISIONS AS CONTAINED IN RULE 14 OF INCOME TAX RULES, 1962 W HICH ARE EFFECTIVE FROM 01.03.2016. THE SAID DATE IS FURTHE R RELAXED AND EXTENDED BY CIRCULAR NO.20/2016 DATED 26.05.2016 EV EN WHICH WAS NOT COMPLIED WITH BY THE ASSESSEE. CONSEQUENTL Y, THE APPEAL OF THE ASSESSEE WAS DISMISSED AS NOT MAINTAI NABLE BY LD CIT(A) WITH THE LIBERTY THAT ASSESSEE IS FREE TO E- FILE THE APPEAL ONCE AGAIN WITH A REQUEST OF CONDONATION OF DELAY. 4. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE S UBMITTED THAT SIMILAR ISSUE ALSO CAME UP BEFORE THE CO-ORDIN ATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.622/M /2019 A.Y. 2009-10 AND THE CO-ORDINATE BENCH OF THE TRIBUNAL H AS DECIDED THE SAME IN FAVOUR OF THE ASSESSEE BY DIRECTING THE LD. CIT(A) TO DECIDE THE APPEAL FILED BY THE ASSESSEE IN ELECTRON IC MODE ON MERIT AFTER GIVING A REASONABLE OPPORTUNITY OF HEAR ING TO THE ASSESSEE. THE LD. A.R. PRAYED BEFORE THE BENCH THA T SIMILAR ITA NO.662/M/2019 M/S. SIR DORABJI TATA TRUST 3 DIRECTION MAY KINDLY BE GIVEN TO THE LD. CIT(A) BY RESTORING THE MATTER BACK TO THE FILE OF THE LD. CIT(A).WHEN THE LD DR IS CONFRONTED WITH THE FACTS, HE LEFT THE ISSUE TO THE WISDOM OF THE BENCH. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE NOTE THAT UNDISPUTEDLY THE ASSESSEE HAS FILED APPEAL IN MANUAL FORM ON 02.05.2016 AND ALSO FILED IN ELEC TRONIC MODE ON 22.11.2018, HOWEVER, LD. CIT(A) BY REFERRING TO THE NOTIFICATION AND CIRCULAR AS CITED ABOVE CAME TO CO NCLUSION THAT ASSESSEE HAS NOT COMPLIED WITH THE PROVISIONS AS CO NTAINED IN RULE 45 OF INCOME TAX RULES, 1962 AND CIRCULAR NO.20/2016 DATED 26.05.2016. IN THIS CASE, WE FIND THAT ASSES SEE HAS FILED THE APPEAL IN ELECTRONIC FORM ALSO WHICH WAS PENDIN G BEFORE THE LD. CIT(A) ON THE DATE OF DISMISSING THE APPEAL. I N OUR OPINION, THE LD. CIT(A) HAS FAILED TO DECIDE THE APPEAL OF T HE ASSESSEE ON MERIT AND THUS THE ASSESSEE IS DEPRIVED OF ITS LAWF UL AND LEGITIMATE RIGHT OF BEING HEARD BEFORE THE APPELLAT E ORDER IS PASSED. THE DECISION OF THE LD. CIT(A) IS AGAINST THE DECISION OF THE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUI SITION VS. MST. KATIJI 167 ITR 471 (SC) WHEREIN IT HAS BEEN HE LD THAT WHERE A SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION A RE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUST ICE DESERVED TO BE PREFERRED OVER TECHNICALITIES. WE ALSO NOTE THA T THE SIMILAR ISSUE HAS BEEN DECIDED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.622/M2019 A.Y. 2009-10 IN ASSESSEES OWN CASE AS STATED SUPRA AND THE OPERATIVE PART OF THE DECISIO N IS REPRODUCED AS UNDER: 4. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE FIND THAT L EARNED CIT(A) HAS DISMISSED THE APPEAL FOR HAVING NOT FILED THE APPEAL IN ELECTRONI C FORM DESPITE NOTING THE ITA NO.662/M/2019 M/S. SIR DORABJI TATA TRUST 4 ASSESSEES SUBMISSION THAT THE SAME HAS ALSO BEEN D ULY FILED. IN OUR CONSIDERED OPINION, THE ORDER OF LEARNED CIT(A) IS SUFFERING F ROM HYPERTECHNICALITIES NOT SUSTAINABLE IN LAW. IT IS SETTLED LAW THAT WHEN SUB STANTIAL INTEREST OF JUSTICE IS PITTED AGAINST TECHNICALITIES, IT IS THE SUBSTANTIAL INTER EST OF JUSTICE WHICH PREVAILS. IN THIS REGARD, LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITT ED BEFORE US AN ORDER OF THIS TRIBUNAL IN THE CASE OF ITA NO. 7031/MUM/2018 VIDE ORDER DATED 16/1/2020. 5. IN THE SAID ORDER, ON IDENTICAL FACTS, THE TRIBU NAL HAD INTER-ALIA NOTED THAT FILING OF APPEAL BEFORE THE LEARNED CIT(A) IS PRESCRIBED UNDE R SECTION 249 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND THAT THERE IS NO MANDATE IN SECTION 249 OF THE ACT TO FILE IT ELECTRONICALLY. HOWEVER, THE REVENUE HAS AMENDED THE CORRESPONDING RULE 45 FOR MAKING MANDATORY E-FILING OF APPEAL FOR A SP ECIFIED CATEGORY OF ASSESSEES. THE FILING OF APPEAL IS MADE MANDATORY ONLY FROM 01 .03.2016. THAT THERE IS NO EXPRESS MANDATE UNDER RULE 45 TO THE LEARNED CIT(A) TO DISMISS THE APPEAL IN CASE THE APPEAL IS NOT FILED ELECTRONICALLY. HAVING NOTE D THAT THE ASSESSEE HAS ALREADY FILED THE APPEAL ELECTRONICALLY, THE ITAT HAS DIREC TED THE LEARNED CIT(A) TO DECIDE THE SAME ON MERITS. 6. IN OUR CONSIDERED OPINION, ON THE FACTS AND CIRC UMSTANCES OF THIS CASE, THE RATIO FROM THE ABOVE DISCUSSION AND CASE LAW DULY APPLY T O THE PRESENT CASE. ACCORDINGLY, SINCE THE ASSESSEE HAS ALREADY FILED THE APPEAL TO THE LEARNED CIT(A) IN ELECTRONIC FORM, AS NOTED IN THE ORDER OF LEARNED CIT(A) ITSEL F, THE LEARNED CIT(A) IS DIRECTED TO DECIDE THE SAME UPON MERITS AFTER GIVING THE ASSESS EE PROPER OPPORTUNITY OF BEING HEARD. 6. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISI ONS AS DISCUSSED ABOVE, RESTORE THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO DECIDE THE APPEAL ALRE ADY FILED BY THE ASSESSEE IN AN ELECTRONIC MODE ON MERIT AFTER GIVIN G A FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23.07.2021. SD/- SD/- (VIKAS AWASTHY) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 23.07.2021. * KISHORE, SR. P.S. ITA NO.662/M/2019 M/S. SIR DORABJI TATA TRUST 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.