Mr. Shivaprasad Urs, Ramanagar V. Income Tax Officer, Ward-1, Ramanagar

ITA 920/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5872 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 23-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABDUL HAKEEM M
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 920 / BANG/201 8 ASSESSMENT YEAR : 2009 - 10 SHRI SHIVAPRASAD URS., C/O. SRI NANJUNDESHWARA TRADERS, NO. 6, OPP. STATE BANK OF MYSORE, RAMANAGAR 562 159. PAN: ABHPH4416P VS. THE INCOME TAX OFFICER, WARD 1, RAMANAGAR. APPELLANT RESPONDENT APPELLANT BY : SHRI MUKESH JAIN, CA RESPONDENT BY : SHRI ABDUL HAKEEM .M, JCIT (DR) DATE OF HEARING : 2 3 . 0 4 .2018 DATE OF PRONOUNCEMENT : 04 . 0 5 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A)-3, BANGALORE DATED 29.01.2018 FOR ASSESS MENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE LEARNED INCOME TAX OFFICER AND THE COMMISSIO NER OF INCOME TAX (APPEALS) WERE ERRED IN PASSING THE ORDER IN TH E MANNER PASSED BY THEM. THE ORDER BEING BAD IN LAW AND IS LIABLE T O BE QUASHED. 2. IN ANY CASE THE CONDITION PRECEDENTS FOR ISSUE O F NOTICE U/S. 148 OF THE INCOME TAX ACT 1961 BEING ABSENT. THE REOPENING BECOMES BAD IN LAW AND CONSEQUENTLY THE ORDER PASSED BEING ALSO BA D IN LAW IS LIABLE TO BE QUASHED. 3. IN ANY CASE AND FURTHER PREJUDICE THE LEARNED IN COME TAX OFFICER HAS ERRED IN NOT ACCEPTING THE CASH DEPOSITS ARE OU T OF THE EARLIER YEAR PROFIT/INCOME. SUCH TREATMENT AGAINST THE FACTS OF THE CASE IS LIABLE TO BE DELETED. ITA NO.920/BANG/2018 PAGE 2 OF 4 4. THE ORDER PASSED BY THE LEARNED CIT (A) IS AGAIN ST THE FACTS OF THE CASE AND PROVISIONS OF LAW. 5. FOR THESE AND OTHER REASONS WHICH MAY BE ADDUCED AT THE TIME OF HEARING THE APPELLANT PRAYS BEFORE YOUR HONOR TO DE LETE THE ADDITIONS MADE BY THE ASSESSING OFFICER. 6. APPELLANT CRAVES, LEAVES TO ADD, TO ALTER, TO AM END, OR TO DELETE ANY OTHER REASON AT THE TIME OF HEARING. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT IT IS NOTED BY CIT(A) IN PARA 3.1 OF HIS ORDER THAT APPEAL WAS FIL ED MANUALLY BY THE ASSESSEE ON 27.04.2016 AND THE ASSESSEE ALSO MADE REQUEST FO R CONDONATION OF DELAY OF 7 DAYS. HE FURTHER POINTED OUT THAT IN THE SAME PA RA OF HIS ORDER, IT IS STATED BY CIT(A) THAT THE ASSESSEE WAS REQUIRED TO FILE THE A PPEAL BY E FILING MODE ONLY AS PER CBDT CIRCULAR NO. 20/2016 DATED 26.05.2016 A ND THE SAME WAS FILED BY THE ASSESSEE AFTER A DELAY OF 152 DAYS ON 14.11.201 6. HE SUBMITTED THAT THIS OBSERVATION OF CIT (A) IS NOT CORRECT THAT ASSESSEE WAS REQUIRED TO FILE APPEAL BY WAY OF E FILING MODE AS PER THIS BOARD CIRCULAR. IN THIS REGARD, HE DRAWN MY ATTENTION TO THE NOTIFICATION ISSUED BY CBDT ON 01. 03.2016, COPY AVAILABLE ON PAGES 32 AND 33 OF PAPER BOOK, IN WHICH IT IS STATE D THAT IN THE CASE OF A PERSON WHO IS REQUIRED TO FURNISH RETURN OF INCOME ELECTRO NICALLY UNDER SUB-RULE (3) OF RULE 12, THE APPEAL IN FORM NO. 35 HAS TO BE FILED ELECTRONICALLY UNDER DIGITAL SIGNATURE OR THROUGH ELECTRONIC VERIFICATION CODE. THEREAFTER, HE DRAWN MY ATTENTION TO CIRCULAR NO. 03/2009 DATED 21.05.2009 AVAILABLE ON PAGES 30 AND 31 OF PAPER BOOK AND POINTED OUT THAT AS PER THIS C IRCULAR, IT IS MANDATORY FOR THE FIRMS TO WHOM PROVISIONS OF SECTION 44AB ARE APPLIC ABLE AND FOR THE COMPANIES OTHER THAN THE COMPANIES CLAIMING EXEMPTION U/S. 11 TO FURNISH THE RETURN OF INCOME / FRINGE BENEFITS ELECTRONICALLY IN THE MANN ER MENTIONED IN PARA 3 OF THIS CIRCULAR. HE SUBMITTED THAT IN THE CASE OF THE ASS ESSEE, IT IS NOT MANDATORY TO FILE THE RETURN OF INCOME ELECTRONICALLY BECAUSE TH E ASSESSEE IS NOT SUBJECTED TO TAX U/S. 44AB AND THEREFORE, IT WAS NOT NECESSARY F OR THE ASSESSEE TO FILE FORM NO. 35 ELECTRONICALLY AS HELD BY CIT (A). HE FURTH ER SUBMITTED THAT SINCE THE APPEAL IN PAPER FORM WAS FILED BY ASSESSEE ON 27.04 .2016, THERE IS DELAY OF ONLY 7 DAYS IN FILING THE APPEAL IN PAPER FORM FOR WHICH THE ASSESSEE HAS ALREADY MADE REQUEST FOR CONDONATION OF DELAY OF 7 DAYS AS NOTED BY CIT(A) IN ITA NO.920/BANG/2018 PAGE 3 OF 4 PARA 3.1 OF ITS ORDER. HE SUBMITTED A COPY OF THE SAME AND REQUESTED THAT THIS DELAY OF 7 DAYS SHOULD BE CONDONED AND APPEAL SHOUL D BE DECIDED ON MERIT. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A) . 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT AS PER PARA 3.1 OF ORDER OF CIT(A), IT IS STATED BY HIM THAT W.E.F. 01.03.2016, IT WAS MANDATORY TO FILE APPEALS THROUGH E FILING MODE AND THE APPEALS FILED MANUALLY CANNOT BE CONSIDERED AS APPEAL FILED IN THE PRESCRIBED MANNER . AS PER NOTIFICATION AVAILABLE ON PAGES 32 AND 33 OF PAPER BOOK BEING NO TIFICATION DATED 01.03.2016, IT COMES OUT THAT E FILING OF FORM NO. 35 WAS MADE MANDATORY ONLY FOR THOSE ASSESSEES WHO WERE REQUIRED TO FILE THE R ETURN OF INCOME IN ELECTRONIC MODE AND IT HAS BEEN STATED IN PARA 2(B) OF THIS NO TIFICATION THAT IN A CASE WHERE THE ASSESSEE HAS THE OPTION TO FURNISH THE RETURN O F INCOME IN PAPER FORM, THE APPEAL IN FORM NO. 35 CAN ALSO BE FILED IN PAPER FO RM ALTHOUGH THE SAME CAN BE FILED BY ASSESSEE ELECTRONICALLY ALSO IF THE ASSESS EE SO DESIRES. HENCE IN MY CONSIDERED OPINION, FILING OF THE APPEAL IN THE PRE SENT CASE IN PAPER FORM ON 27.04.2016 IS IN ORDER AND THE SAME SHOULD BE ACCEP TED IF THE DELAY OF 7 DAYS IN SUCH FILING IS CONDONED. THE ASSESSEE HAS ALREA DY MADE THE REQUEST TO CIT(A) FOR CONDONATION OF DELAY OF 7 DAYS, COPY OF WHICH IS MADE AVAILABLE BEFORE ME ALSO. IN THE SAID LETTER FOR CONDONATION OF DELAY, IT IS STATED THAT THIS DELAY IS FOR THE REASON THAT THE ASSESSEE WAS SUFFE RING FROM ILLNESS, WAS HOSPITALISED AND AFTER RECOVERY, THE APPEAL WAS FIL ED WITHOUT WASTING ANY TIME. 5. CONSIDERING THE FACTS OF THE PRESENT CASE IN ITS ENTIRETY, I CONDONE THE DELAY OF 7 DAYS IN FILING THE APPEAL IN PAPER FORM ON 27.04. 2016. I SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR DECISION ON MERIT AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES. IN VIEW OF THIS, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT OF T HE CASE AT THE PRESENT STAGE. ITA NO.920/BANG/2018 PAGE 4 OF 4 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 04 TH MAY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.