NOORALI BANDEALI CHARANIA, MUMBAI V. ITO 17(2)(5), MUMBAI

ITA 7374/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2724 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 24-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN UNAVKAR
• Keywords: Opportunity of being heard
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , HON'BLE ACCOUNTANT MEMBER ITA NO. 7374 /MUM/201 8 (A.Y: 2013 - 14) NOORALI BANDEALI CHARANIA SHOP NO . 7/B, SHAMJI MORARJI BUILDING CHAMPSI BHIMJI ROAD , MAZGAON MUMBAI 400 010 PAN: AAEPC3659D V. INCOME TAX OFFICER 17(2)(5) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI TANMAY PHADKE DEPARTMENT BY : SHRI KIRAN UNAVKAR DATE OF HEARING : 26 .02.2020 DATE OF PRONOUNCEMENT : 13 .03 . 2020 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 58 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 16.10.2018 FOR THE ASSESSMENT YEAR 2013 - 14 . 2. ASSESSEE HAS RAISED HIS GRIEVANCE THAT THE LD.CIT(A) DISMISSED THE APPEAL ON TECHNICAL GROUND AS THE ASSESSEE HAS NOT FILED THE APPEAL IN ELECTRONIC FORM BUT FILED MANUALLY. 2 ITA NO. 7374/MUM/2018 (A.Y: 2013 - 14) NOORALI BANDEALI CHARANIA 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, APPEAL FILED BY THE ASSESSEE WAS REJECTED BY THE LD.CIT(A) FOR THE REASON THAT ASSESSEE HAS NOT FIL ED APPEAL IN THE ELECTRONIC FORM AND WAS FILED MANUALLY AND HENCE APPEAL IS NOT MAINTAINABLE. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT APPEAL WAS FILED MANUALLY ON 03.03.2016 WITHIN THE PRESCRIBED TIME, AND THEREFORE DISMISSAL OF APPEAL ON TECHNICAL GR OUND IS NOT JUSTIFIED. LD. COUNSEL SUBMITTED THAT NON - FILING OF APPEAL ELECTRONICALLY IS ONLY A TECHNICAL DEFECT AND THE APPEAL CANNOT BE INVALIDATED SINCE IT IS NOT FILED ELECTRONICALLY. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS IN SUPPORT OF HIS C ONTENTION THAT THE APPEAL FILED MANUALLY CANNOT BE TREATED AS INVALID SIMPLY BECAUSE IT WAS NOT FILED ELECTRONICALLY. (I) ALL INDIA FEDERATION OF TAX PRACTITIONERS V. INCOME TAX OFFICER IN ITA.NO. 7134/MUM/2017 [64 ITR (TRIB.) 0704]. (II) M/S. PLAZA SECURITIES PVT. LTD., V. DCIT IN ITA.NO. 6741/MUM/2 017 DATED 17.01.2019. 4. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE LAWS RELIED ON. IDENTICAL ISSUE HAD COME UP BEFORE THE COORDINATE BENCH IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS V. ITO IN ITA.NO. 7134/MUM/2017 AND THE TRIBUNAL HELD THAT NON - FILING OF APPEAL IN THE ELECTRONIC FORM IS ONLY A PROCEDURAL DEFECT WHICH CAN BE CURED AND THE TRIBUNAL RESTORED MATTER BACK TO THE FILE OF THE 3 ITA NO. 7374/MUM/2018 (A.Y: 2013 - 14) NOORALI BANDEALI CHARANIA LD.CIT(A) FOR DISPOSAL OF APPEAL ON MERITS AND THE ASSESSEE WAS DIRECTED TO FILE APPEAL IN ELECTRONIC FORM WITHIN TEN DAYS ON RECEIPT OF ORDER. SIMILAR VIEW HAS BEEN TAKEN BY THE COORDINATE BENCH IN THE DECISION WHICH WAS RELIED ON BY THE ASSESSEE. FOLLOWING THE ABOVE DECISIONS, WE RESTORE THIS APPEAL TO THE FILE OF THE LD.CIT(A) AND ASSESSEE IS DIRECTED TO E - FILE THE AFORESAID APPEAL S WITHIN A PERIOD OF FIFTEEN ( 15 ) DAYS FROM THE DATE OF RECEIPT OF THIS ORDER, CONSEQUENT TO WHICH DELAY IN E - FILING SHALL STAND CONDONED AND THE LD.CIT(A) SHALL DISPOSE OFF THE APPEALS ON MERITS. NEEDLESS TO SAY THAT THE LD.CIT(A) SHALL GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 13 TH MARCH , 2020 SD/ - SD/ - ( S. RIFAUR RAHMAN) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 13 / 0 3 / 2020 GIRIDHAR , S R. PS 4 ITA NO. 7374/MUM/2018 (A.Y: 2013 - 14) NOORALI BANDEALI CHARANIA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM