GANESH INTERNATIONAL, MUMBAI V. A.C.I.T. 17(1), MUMBAI

ITA 668/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5706 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, BENCH M UMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMB ER & SHRI G. MANJUNATHA, ACCOUNTANT MEMB ER ITA NO.668/MUM/2019 ( ASSESSMENT YEAR :2008-09 ) GANESH INTERNATIONAL 205-207, YOGESHWAR BUILDING,135/139 KAZI SAYED STREET MASJID MUMBAI-400 003 VS. ACIT-17(1) ROOM NO.117 AAYKAR BHAWAN M.K.ROAD MUMBAI-400 020 PAN/GIR NO. A AHFG0841Q APPELLANT ) .. RESPONDENT ) REVENUE BY SHRI ASHISH KUMAR, DR ASSESSEE BY NONE DATE OF HEARING 30 /01/2020 DATE OF PRONOUNCEMENT 12/02/2020 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)56, MU MBAI, DATED 06/11/2018 AND IT PERTAINS TO ASSESSMENT YEAR 2008- 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) ERRED IN DISMISSING, IN LIMINE, THE MANUAL APPEAL (THOUGH FILED WITHIN TIME PRESCRIBED UNDER SECTION 249(2) OF IT. ACT, 1961) IN EX-PARTE MANNER MERELY ON A TECHNICAL/VENIAL FLAW OF NON FIL LING OF E-APPEAL, THEREBY RESULTING IN MERITORIOUS MATTER BEING THROW N OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED, FOR NO DELIBERATE FAULT/DEFAULT ON THE PART OF THE APPELLANT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) ERRED IN NOT APPRECIATING THE FACT THAT (A) APPEAL COULD NOT BE FILED ITA NO.668/MUM/2019 GANESH INTERNATIONAL 2 ELECTRONICALLY ON ACCOUNT OF LACK OF LEGAL KNOWLEDG E ON THE PART OF THE APPELLANT AND LACK OF PROPER FILING BY THE ERSTWHIL E AUTHORIZED REPRESENTATIVE AS ALSO (B) THE FAILURE ON THE PART OF ERSTWHILE AUTHORIZED REPRESENTATIVE DURING APPELLATE PROCEEDINGS, CANNOT BE CONSTRUED AS DELIBERATE DEFAULT ON THE PART OF APPELLANT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT (A) ERRED IN DISMISSING THE APPEAL IN LIMINE KEEPIN G IN VIEW THE SETTLED LAW THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CON SIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVE TO BE PREFERRED AND HENCE THE IMPUGNED APPELLATE ORDER MA Y KINDLY BE QUASHED AND APPEAL TO BE HEARD ON MERITS AFTER CONDONING DELAY, IF ANY 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT (A) IN NOT APPRECIATING THAT MANUALLY FILED APP EAL WITHIN THE STIPULATED TIME WAS ACCEPTED BY HIS OFFICE WITHOUT ANY OBJECTI ON AND THEREFORE, THE LEARNED (A) SHOULD HAVE ADMITTED APPEAL AND DECIDED THE ISSUES ON MERITS. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N JAW, THE LEARNED CIT (A) ERRED IN NOT APPRECIATING THAT EVEN THOUGH THE APPEAL OF THE APPELLANT WAS NOT FILED ELECTRONICALLY, SUFFICIENT TIME COULD HAVE BEEN GIVEN TO APPELLANT BY LEARNED CIT (A) TO REMOVE THE DEFECT BY ALLOWING FILING OF APPEAL ELECTRONICALLY AND THEN THE APPEAL COULD HAVE BEEN DISPOSED OF BY LEARNED CIT (A) ON MERITS AFTER SUCH COMPLIANCE. 3. NONE APPEARED FOR THE ASSESSEE. WE HAVE HEARD TH E LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT THE LD.CIT(A) HAS DISMISSED APPEAL FILED BY THE ASSESSE IN LIMINE FOR NOT FILING AN APPEAL IN ELECTRONIC FORM, AS REQUIRED UN DER RULE 45 R.W.RULE 12 OF I.T.RULES 1962. WE FIND THAT THE ISS UE INVOLVED IN THE PRESENT APPEAL IS COVERED BY THE DECISION OF ITAT, MUMBAI IN THE CASE OF DEEPAK RAHEJA IN ITA NO. 6181/MUM/2018, WH ERE UNDER IDENTICAL SET OF FACTS, THE TRIBUNAL HAS RESTORED THE APPEAL BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE THE APPEAL ON M ERITS IN ACCORDANCE WITH LAW, AFTER ALLOWING THE ASSESSEE T O FILE APPEAL IN ELECTRONIC FORM, IF NOT FILE ALREADY. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER:- 5. NONE APPEARED FOR THE ASSESSEE. WE HAVE HEARD T HE LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD ALONG WIT H ORDERS OF THE ITA NO.668/MUM/2019 GANESH INTERNATIONAL 3 LD.CIT(A). WE FIND THAT THE LD.CIT(A) HAS DISMISSED APPEAL FILED BY THE ASSESSEE IN-LUMINE ON TECHNICAL GROUND FOR NOT FIL ING APPEAL IN ELECTRONIC FORM AS PER AMENDED RULE 45 OF THE I.T.RULES,1962, AS WELL AS CBDT CIRCULAR NO. 11/2016, DATED 01/03/2016 AND 20/2016 DATED 26/05/2016, ALTHOUGH, THE ASSESSEE HAS FILED APPEAL WITHIN THE PRESCRIBED TIME ALLOWED UNDER THE ACT IN MANUAL FORM. THE ASSESSEE HAS EXPLAINED THE REASONS FOR NOT FILING APPEAL IN ELECTRONIC FORM BE FORE THE LD.CIT(A), AS PER WHICH THE ASSESSEE WAS NOT AWARE OF THE AMENDED RULE 45 OF THE I.T.RULES, 1962, WHICH MANDATES FILING OF APPEALS I N ELECTRONIC FORM. FURTHER, WHEN THE SAID LAPSES HAS BEEN BROUGHT TO T HE NOTICE OF THE ASSESSEE, IT HAS FILED APPEAL IN ELECTRONIC FORM ON 29/08/2018. BUT THE LD.CIT(A) HAS DISMISSED APPEAL FILED BY THE ASSESS EE, ON THE GROUND THAT SAID APPEAL IS NOT MAINTAINABLE, AS PER THE PR OVISION OF SECTION 249(1) OF THE ACT. NO DOUBT, THE LAW HAS BEEN AMEND ED, SO AS TO FILE APPEAL IN ELECTRONIC FORM AFTER CERTAIN DATES AND A S PER WHICH, ALL APPEALS ARE REQUIRED TO BE FILED IN ELECTRONIC FORM ONLY. B UT, WHEN THE ASSESSEE HAS EXPLAINED THE REASONS FOR NOT FILING APPEAL IN ELECTRONIC FORM AND SAID REASONS ARE BONAFIDE, THEN THE LD.CIT(A) OUGHT TO H AVE CONSIDERED THE EXPLANATION OF THE ASSESSEE, CONDONE THE DELAY IN FILING OF APPEAL AND DISPOSE-OFF THE APPEAL ON MERITS IN ACCORDANCE WITH LAW, BECAUSE, THE ASSESSEE HAS FILED APPEAL IN MANUAL FORM WITHIN THE DUE DATE PRESCRIBED UNDER THE ACT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT WHEN, THE ASSESSEE HAS FILED AN APPEAL IN MANUAL FORM WITHIN THE PRESCRIBED TIME ALLOWED UNDER THE ACT AND ALSO, RECTIFIED THE LAPSE S, AS AND WHEN SAID LAPSES HAS BEEN BROUGHT TO HIS NOTICE, THE APPEAL O F THE ASSESSEE CANNOT BE DISMISSED ON TECHNICAL GROUNDS THAT TOO DURING TRANSITION PERIOD. 6. WE FURTHER NOTICED THAT THE CO-ORDINATE BENCH OF ITAT, MUMBAI G BENCH, IN THE CASE OF M/S. ASTERIX REINFORCED LTD., VS ITO IN ITA NO. 426/MUM/2018 HAD CONSIDERED AN IDENTICAL ISSUE AND AFTER CONSIDERING RELEVANT FACTS HAS RESTORED THE APPEAL TO THE FILE OF THE LD. CIT(A) AND DIRECT HIM TO CONDONED DELAY IN FILING APPEAL IN EL ECTRONIC FORM AND TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER:- 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS AN UNDISPUTED FACT THAT THE CBDT HAS MANDATED FILING OF APPEAL IN ELECTRONIC FORM AFTER A CERTAIN DATE BY ISSUING NOTIFICATION VIDE NOTIFICATION NO.SO 637(E) [NO.11/2016 (F. NO.149/150/2015-TPL)] DATED 01.03.16 AS PER WHICH T HE ASSESSEE IS REQUIRED TO FILE FORM NO.35 ELECTRONICALLY. IT I S ALSO AN ADMITTED FACT THAT THE CBDT HAS EXTENDED SUCH DUE DATE OF FI LING OF APPEAL IN ELECTRONIC MODE UP TO 15.06.16 CONSIDERING THE HARDSHIPS/TECHNICAL GLITCHES IN FILING THE APPEAL E LECTRONICALLY. ADMITTEDLY, THE ASSESSEE HAS FILED ITS APPEAL IN PA PER FORM ON 29.04.16. THE ASSESSEE CLAIMS THAT IT IS UNAWARE OF THE NOTIFICATION ISSUED BY THE CBDT FOR FILING APPEALS IN ELECTRONIC FORMAT, THEREFORE, IT HAS FILED ITS APPEAL IN MANUAL FORM O N 29.04.16. THE ASSESSEE FURTHER CLAIMS THAT DURING TRANSITION PERI OD THE PROVISIONS OF NOTIFICATION SHOULD NOT BE APPLIED STRICTLY. ITA NO.668/MUM/2019 GANESH INTERNATIONAL 4 7. HAVING HEARD BOTH THE SIDES, WE FIND MERITS IN T HE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT DURING TRANSITION PERIOD THE PROVISIONS OF ANY NOTIFICATION OR CIRCULARS MANDATI NG THE ASSESSEES TO FOLLOW CERTAIN INSTRUCTIONS SHOULD NOT BE STRICT LY APPLIED. WE FURTHER NOTICED THAT THE ASSESSEE HAS FILED ITS APP EAL IN MANUAL FORM AND SUCH APPEAL HAS BEEN FILED WITHIN THE PRES CRIBED TIME UNDER THE ACT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT MERELY BECAUSE THE ASSESSEE HAS NOT FILED THE APPEA L IN ELECTRONIC FORM, THE ASSESSEE'S APPEAL CANNOT BE DISMISSED ON TECHNICAL GROUNDS THAT TOO DURING TRANSITION PERIOD. WE, FURT HER, NOTICED THAT THE HON'BLE SUPREME COURT AND VARIOUS HIGH COURTS H AVE ALREADY CATEGORICALLY STATED THAT WHEN TECHNICALITIES AND S UBSTANTIAL JUSTICE IS PITTED AGAINST EACH OTHER, THE SUBSTANTIAL JUSTI CE DESERVES TO BE PREVAILED OVER TECHNICALITIES. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT(A) WAS ERRED IN DISMISSING TH E APPEAL FILED BY THE ASSESSEE AS NOT MAINTAINABLE, HENCE, WE SET ASI DE THE ISSUE TO THE FILE OF THE LD. CIT(A) AND DIRECT HIM TO ADM IT THE APPEAL FILED BY THE ASSESSEE BY DIRECTING THE ASSESSEE TO FILE I TS APPEAL IN ELECTRONIC FORMAT AND ALSO TO CONDONE DELAY IN FILI NG SUCH APPEAL IN ELECTRONIC FORMAT. WE ALSO DIRECT THE LD. CIT(A) TO DECIDE THE ISSUES ON MERITS. 7. IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOLL OWING THE DECISION OF CO-ORDINATE BENCH OF MUMBAI IN THE CASE OF M/S. AST ERIX REINFORCED LTD.,VS ITO IN ITA NO. 426/MUM/2018, WE RESTORED TH E ISSUE BACK TO THE FILE OF THE LD.CIT(A) AND DIRECT HIM TO ADMIT THE A PPEAL FILED BY THE ASSESEE AND DECIDE THE ISSUE ON MERITS IN ACCORDANC E WITH LAW. 4. IN THIS VIEW OF THE MATTER AND BY FOLLOWING THE DECISION OF CO- ORDINATE BENCH OF ITAT, IN THE CASE OF DEEPAK RAHE JA IN ITA NO. 6181/MUM/2018, WE SET ASIDE THE APPEAL TO THE FILE OF THE LD.CIT(A) AND DIRECT HIM TO ADMIT APPEAL FILED BY THE ASSESSE E AND DEICDE THE ISSUE ON MERITS. THE ASSESSE SHALL FILE APPEAL IN E LECTRONIC FORM, IF NOT FILED ALREADY WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.668/MUM/2019 GANESH INTERNATIONAL 5 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 /02/2 020 SD/- (SAKTIJIT DEY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 12/02/2020 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//