FALGUN MAHESH OZA , MUMBAI V. ITO 22(1)(3), MUMBAI

ITA 865/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5902 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 03-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Condonation of delay; Set aside
• Section: 143(3); 250; 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.865/M/2020 ASSESSMENT YEAR: 2013-14 FALGUN MAHESH OZA, 301, CHEZNOUS, GULMOHAR CROSS ROAD NO.7, JVPD SCHEME, VILE PARLE (W), MUMBAI 400 049 PAN: AAAPO0474A VS. INCOME TAX OFFICER- WARD 22(1)(3), PIRAMAL CHAMBERS, PAREL, MUMBAI 400 012 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : MS. MITALI GOPANI, A.R. REVENUE BY : MS. SMITA VERMA, D.R. DATE OF HEARING : 24.08.2021 DATE OF PRONOUNCEMENT : 14.09.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 12.11.2019 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. IN THE GROUND NO.1 THE ASSESSEE HAS CHALLENGED T HE ORDER OF LD. CIT(A) DISMISSING THE APPEAL ON TECHNICAL GR OUND OF NOT FILING THE APPEAL ELECTRONICALLY. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED A MANUAL APPEAL AGAINST THE ORDER OF AO PASSED UNDER SECTION 143(3) ON 25.04.2016 BEFORE THE FIRST APPELLATE AUTHORITY. T HE LD. CIT(A) OBSERVED THAT SINCE THE ASSESSEE HAS NOT FILED THE APPEAL ITA NO.865/M/2020 FALGUN MAHESH OZA 2 ELECTRONICALLY AS PER RULE 45 & 46 OF INCOME TAX RU LES WHICH IS IN VIOLATION OF CBDT NOTIFICATION NO.20/2016 DATED 26.05.2016. ACCORDINGLY, A SHOW CAUSE NOTICE DATED 04.01.2019 W AS ISSUED AS TO WHY THE APPEAL FILED PHYSICALLY SHOULD NOT BE TREATED AS INVALID AND VOID AB-INITIO AS PER SECTION 249(1) OF THE ACT WHICH WAS REPLIED BY THE ASSESSEE VIDE LETTER DATED 23.01 .2019 STATING THAT THEY HAVE FILED THE APPEAL AGAINST THE ASSESSM ENT ORDER DATED 21.01.2019 ELECTRONICALLY ALSO. FINALLY, THE LD. CIT(A) DISMISSED THE APPEAL FILED MANUALLY WITH THE FOLLOW ING OBSERVATIONS: 4. THE SHOW CAUSE LETTER WAS DULY SERVED ON THE AP PELLANT. IN RESPONSE, THE AR OF THE APPELLANT FILED ITS REPLY DATED 23/01/2019 STAT ING THAT THEY HAVE E-FILED APPEAL AGAINST THE ASSESSMENT ORDER OF ITO-22(1)(3), MUMBA I FOR AY 2013-14 ON 21/01/2019. THE MATTER HAS BEEN CONSIDERED. AFTER THE ISSUE OF SHOW CAUSE LETTER, IT IS SEEN THAT THE APPELLANT HAS FILED THE APPEAL ELECTR ONICALLY ON 21/01/2019 FOR THE IMPUGNED ASSESSMENT YEAR 2013-14. THUS, THERE WOULD BE NO PREJUDICE CAUSED TO THE ELECTRONICALLY FILED APPEAL. THE ISSUES INVOLVE D AND CONDONATION OF DELAY WILL BE CONSIDERED AT THE TIME OF APPELLATE PROCEEDINGS ARI SING OUT OF E-FILED APPEAL. 5.2 THE MANUAL APPEAL FILED IS NOT ADMISSIBLE AS PE R PROVISIONS OF SECTION 249(1) OF THE ACT. CONSEQUENTLY, THIS APPEAL IS TREATED AS NO T MAINTAINABLE AND INVALID ABINITO. ACCORDINGLY, THERE WOULD BE NO CAUSE TO EX AMINE ANY OTHER ASPECT OF THE APPEAL, INCLUDING OTHER STATUTORY PROCEDURES, DEFIC IENCY IN DOCUMENTS OR THE MERITS OF THE CASE, ETC. 6. AS A RESULT, THE MANUAL APPEAL FILED BY THE APPE LLANT FOR A.Y. 2013-14 IS TREATED AS DISMISSED, U/S. 250 R.W.S 251 OF THE ACT. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT IN THIS CASE THE PHYSICAL APPE AL FILED BY THE ASSESSEE ON 25.04.2016 HAS BEEN DISMISSED ON THE GR OUND THAT SAME HAS NOT BEEN FILED ELECTRONICALLY. THEREAFTER , THE ASSESSEE FILED E-APPEAL ON 21.01.2019 WHICH HAS BEEN NOTED B Y THE LD. CIT(A) WHILE DISMISSING THE APPEAL OF THE ASSESSEE . HOWEVER, THE APPEAL FILED PHYSICALLY WAS DISMISSED. IT HAS BEEN ARGUED BY ITA NO.865/M/2020 FALGUN MAHESH OZA 3 THE LD. COUNSEL BEFORE US THAT THE ISSUE MAY KINDLY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO D ECIDE THE ISSUE ON MERIT AFTER CONDONING THE DELAY OF FILING THE APPEA L. 5. HAVING CONSIDERED THE ARGUMENTS OF BOTH THE SIDE S, WE ARE INCLINED TO SET ASIDE THE ISSUE TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE ON MERIT IN TERMS OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ALL INDIA FED ERATION OF TAX PETITION VS. ITO IN ITA NO.7134/M/2017 DATED 04.05. 2018 AND GRASIM DEVELOPERS VS. ACIT IN ITA NO.2998/M/2018 DA TED 10.09.2018. ACCORDINGLY, WE RESTORE THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) IN TERMS OF OUR ABOVE OBSERVATIONS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14.09.2021. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 14.09.2021. * KISHORE, SR. P.S. 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.