PLAZA SECUEITIES PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 10(3)(2), MUMBAI

ITA 6741/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6135 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 27-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: N R AGARWALAR
• Keywords: Period of limitation; Speculation loss
• Section: 143(3); 148

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENC H MUMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO. 6741/MUM/2017 (ASSESSMENT YEAR 2010-11) M/S PLAZA SECURITIES PVT. LTD. 102, NILAMI APARTMENTS, BAPUBHAI VASHI ROAD, VILE PARLE (WEST), MUMBAI-400056. AN: AAACP8335L VS. DCIT-10(3)(2) 6 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-20. APPELLANT RESPONDENT APPELLANT BY : SHRI N.R. AGARWAL(AR) RESPONDENT BY : SHRI D.G. PANSARI (DR) DATE OF HEARING : 17.01.2019 DATE OF PRONOUNCEMEN T : 17.01.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-17, MUMBAI (THE LD. CIT(A) DATED 31.10.2017 FOR ASSESSMENT YEAR 2010-11. THE SOLITARY GROUND OF APPEAL RAISED BY ASSESSEE IS THAT LD. CIT(A) ERRED IN DISMISSING THE APPEAL FOR WANT OF NON- FILING OF APPEAL ELECTRONICALLY. THOUGH PHYSICAL/PA PER APPEAL WAS FILED IN TIME ON 13.04.2016 THEREBY NOT DECIDED THE GROUNDS OF APPEAL ON MERIT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPA NY FILED ITS RETURN OF INCOME DECLARING LOSS AT RS. 34,57,764/- ON 15.09.2 010. INITIALLY RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1). SUBSEQUE NTLY ASSESSMENT WAS REOPENED UNDER SECTION 147. AFTER SERVING NOTIC E UNDER SECTION 148 ITA NO. 6741 MUM 2017-M/ S PLAZA SECURITIES PVT. LTD. 2 DATED 29.03.2015 THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) R.W.S. 147 ON 31.03.2016. THE ASSESSING OFFICER WHI LE PASSING THE ASSESSMENT ORDER MADE VARIOUS ADDITIONS/DISALLOWANC E INCLUDING DISALLOWING OF LOSS AND TREATING THE F & O LOSS AS SPECULATIVE LOSS. THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) ON 13.04.20 16. HOWEVER, THE APPEAL OF THE ASSESSEE WAS DISMISSED ON THE GROUND THAT AS PER CBDT CIRCULAR/NOTIFICATION NO. 11 OF 2016 DATED 01.03.20 16, THE ASSESSEE WAS REQUIRED TO FILE APPEAL ELECTRONICALLY. THE LD. CIT (A) ALSO OBSERVED THAT CBDT SUBSEQUENTLY EXTENDED THE PERIOD FOR FILING AP PEAL ELECTRONICALLY TILL 15.06.2016 VIDE CIRCULAR NO. 20/2016 DATED 26. 05.2016. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD.AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE SUBMITS THAT THE ASSESSEE COULD NOT FILE ELECTRONIC APPEAL WITHIN EX TENDED PERIOD GRANTED BY CBDT FOR FILING ELECTRONIC APPEAL.HOWEVER,THE AS SESSEE FILED PHYSICAL APPEAL ON 13.04.2016, WHICH WAS WELL WITHIN PERIOD OF LIMITATION. THE LD. AR FURTHER SUBMITS THAT THE NON-FILING OF ELECTRONIC APPEAL W AS NEITHER INTENTIONAL NOR DELIBERATE, THOUGH PHYSICAL/PAPER A PPEAL WAS FILED WELL WITHIN TIME AND THE ELECTRONIC APPEAL WAS FILED ON 27.10.2017. THE LD.AR SUBMITS THAT THE PROCEDURE FOR FILING ELE CTRONIC APPEAL WAS ITA NO. 6741 MUM 2017-M/ S PLAZA SECURITIES PVT. LTD. 3 INTRODUCED FOR THE FIRST TIME, THEREFORE, DUE TO IG NORANCE THE ELECTRONIC APPEAL COULD NOT BE FILED WELL WITHIN TIME OR IN TH E EXTENDED PERIOD FOR FILING ELECTRONIC APPEAL. THE LD. AR RELIED UPON TH E DECISION OF DELHI TRIBUNAL IN GURINDER SINGH DHILLOW VS. ITO IN ITA N O. 6595/DEL/2016 DATED 19.04.2017 AND MUMBAI TRIBUNAL IN ALL INDIA F EDERATION OF TAX PRACTITIONERS VS. ITO IN ITA NO. 7134/MUM/2017 DATE D 4.05.2018. 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE RELIE D UPON THE ORDER OF LD. CIT(A) IN ALTERNATIVE SUBMISSION, THE LD. DR SUBMIT S THAT IN CASE THE DELAY IS CONDONED BY THE TRIBUNAL IN FILING ELECTRO NIC APPEAL, THE MATTER MAY BE RESTORE TO THE FILE OF LD. CIT(A) FOR THE DE CISION ON MERIT. 5. WE HAVE CONSIDERED THE SUBMISSION OF THE PARTIES AN D HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THERE IS NO DISPUT E THAT THE ASSESSEE FILED PHYSICAL/PAPER APPEAL WELL WITHIN PERIOD OF LIMITAT ION I.E. ON 13.04.2016. THE ASSESSEE BEFORE THE LD. CIT(A) VIDE THEIR SUBMI SSION DATED 30.10.2017 SUBMITTED THAT, IF ELECTRONIC APPEAL HAS BEEN FILED ON 27.10.2017 AND REQUESTED FOR FURTHER TIME (AS RECOR DED IN PARA-4 OF THE ORDER OF LD. CIT(A). HOWEVER, THE LD. CIT(A) INSTEA D OF GRANTING FURTHER TIME AND CONSIDERING THE SUBMISSION OF ASSESSEE, DI SMISSED THE APPEAL OF ASSESSEE VIDE IMPUGNED ORDER DATED 31.10.2017. CONS IDERING THE DECISION OF CO-ORDINATE BENCH IN ALL INDIA FEDERATION OF TAX PRACTITIONERS (SUPRA) THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL J USTICE ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERV E TO BE PREFERRED AND ITA NO. 6741 MUM 2017-M/ S PLAZA SECURITIES PVT. LTD. 4 CANNOT BE OVERSHADOWED OR NEGATIVE BY SUCH TECHNICA L CONSIDERATION. CONSIDERING THE SUBMISSION OF ASSESSEE AND DECISION OF THE CO-ORDINATE BENCH OF TRIBUNAL IN ALL INDIA FEDERATION OF TAX PR ACTITIONERS (SUPRA), THE DELAY IN FILING ELECTRONIC APPEAL IS CONDONED AND T HE APPEAL OF ASSESSEE IS RESTORE TO THE FILE OF LD. CIT(A) TO DECIDE THE APP EAL ON MERIT IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT BEFORE DE CIDING THE APPEAL ON MERIT, THE ASSESSEE SHALL BE GRANTED SUFFICIENT OPP ORTUNITY OF HEARING. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/ 01/2019. SD/ SD/- RAMIT KOCHAR PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 17.01.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI