BHUPENDRA HARILAL MEHTA, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX - CIRCLE 19(1), MUMBAI

ITA 961/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4086 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 19-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHEELAVATI BODELE
• Keywords: Opportunity of being heard; Bogus loan
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAM LAL NEGI, JM ITA NO.961/MUM/2018 (ASSESSMENT YEAR: 2010-11) BHUPENDRA HARILAL MEHTA 1/B, RIZVI PARK 5-A, ALTAMOUNT ROAD MUMBAI-400 026 VS. ACIT - 19(1) 203, MATRU MANDIR TARDEO MUMBAI-400 007 PAN/GIR NO. AABPM9136G ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : MS. SHEELAVATI BODELE RESPONDENT BY : AARSI PRASAD DATE OF HEARING : 11.03.2019 DATE OF PRONOUNCEMENT : 11 .03.2019 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-60, MU MBAI (LD. CIT(A) FOR SHORT) DATED 10/01/2018 AND PERTAINS TO THE ASSESSM ENT YEAR (A.Y.) 2010- 11. 2. THE GROUNDS OF APPEAL READ AS UNDER: GR. 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPE ALS)-6O ERRED IN DISMISSING THE PAPER APPEAL FILED ON 21-04-2016 WHI CH WAS ACCEPTED AND ACKNOWLEDGED BY THE INCOME TAX DEPARTMENT. 2. HE FURTHER FAILED TO APPRECIATE THAT: I) THE PAPER APPEAL WAS FILED IN 30 DAYS AND ACKNOWLED GED BY INCOME TAX DEPARTMENT, THEREFORE, ESCAPED ATTENTION TO FIL E, APPEAL ELECTRONICALLY 2 ITA NO.961/MUM/2018 BHUPENDRA H. MEHTA II) THE APPEAL WAS ALSO FILED ELECTRONICALLY ON 27- 12-2017 WITH A REQUEST TO SUBSTITUTE WITH THE PAPER APPEAL. III) APPLICATION FOR CONDONATION OF FILING ELECTRON IC APPEAL WAS MADE ON 27- 12-2017. IV) PERSONAL HEARING OUGHT TO HAVE BEEN GIVEN BEFOR E DISMISSING PAPER APPEAL. 3. THE APPELLANT PRAYS THAT THE PAPER APPEAL FILED ON 21-4-2D16 FOLLOWED BY SUBSTITUTION OF ELECTRONIC APPEAL FILED ON 27-12 -2017 BE ADMITTED AND THE COMMISSIONER OF INCOME-TAX (APPEALS) BE DIRECTE D TO ADJUDICATED THE APPEAL. WITHOUT PREJUDICE TO THE ABOVE: GR. II 1. THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) ERRED IN NOT ADJUDICATING RE-OPENING OF ASSESSMENT UNDER SECTION 147 BY ISSUE OF NOTICE UNDER SECTION 148 DATED 30-3-2015, AS BAD IN LAW. 2. THE APPELLANT PRAYS THAT THE RE-OPENING OF ASSES SMENT UNDER SECTION 147 BE HELD TO BE BAD IN LAW AND THE IMPUGNED NOTIC E UNDER SECTION 148 DATED 3-03-2015 BE HELD NOT SUSTAINABLE GR.II 1. LEARNED COMMISSIONER OF INCOME LAX (APPE ALS) ERRED IN NOT ADJUDICATING ADDITION OF RE. 50,00,000/- TO THE INC OME OF THE APPELLANT, ALLEGED TO BE BOGUS LOANS FROM M/S. PARVATI EXPORTS 2. THE APPELLANT PRAYS THAT ADDITION OF RS. 50,00,0 00/- ON ACCOUNT LOAN FROM M/S. PARVATI EXPORTS BE DELETED. GR. IV. THE APPELLANT CRAVES LEAVE TO ADD, ERROR, A MEND WITHDRAW OR SUBSTITUTE THE ABOVE GROUNDS OF APPEAL. 3. WE HAVE HEARD THE BOTH THE COUNSEL AND PERUSED T HE RECORDS. WE FIND THAT IN THIS CASE ASSESSEE HAS PREFERRED THE A PPEAL BEFORE THE LD. CIT(A) IN PAPER FORM. HOWEVER, NOTING THAT AS PER T HE EXTANT RULES THE APPEAL MUST BE VERIFIED ELECTRONICALLY LD. CIT(A) D ISMISSED THE ASSESSEES APPEAL IN LIMINE. THIS THE LD. CIT(A) DID DESPITE NOTING THE ASSESSEES PLEA THAT ELECTRONIC APPEAL WAS DULY FILE BEFORE HIM ON 27.12.2017 AND THE SAME WAS DULY AVAILABLE BEFORE HIM WHEN HE PASSED THE AB OVE ORDER ON 3 ITA NO.961/MUM/2018 BHUPENDRA H. MEHTA 10.1.2018. IN FACT, IN THE SAID ORDER LD. CIT(A) H AS COMPLETELY IGNORED THE EARLIER PART OF HIS ORDER WHERE HE HAS NOTED THE FA CT THAT ASSESSEE HAS DULY SUBMITTED THE APPEAL IN ELECTRONIC FORM. 4. THE LD. CIT(A) ORDERED THAT ASSESSEES APPEAL IF FILED IN ELECTRONIC FORM SUBSEQUENTLY MAY BE DULY CONSIDERED AFTER CONS IDERING THE ISSUE OF CONDONATION OF DELAY. THIS CLEARLY SHOWS THAT LD. C IT(A) HAS NOT APPLIED HIS MIND TO THE SUBMISSIONS OF THE ASSESSEE INCLUDI NG THAT THE APPEAL IN ELECTRONIC FORM HAS BEEN DULY SUBMITTED BEFORE HIM. WE FURTHER FIND THAT THIS WAS THE FIRST YEAR IN WHICH THE EXTANT RULE PR OVIDED THAT APPEALS HAVE TO BE FIND IN ELECTRONIC FORM. AS A MATTER OF FACT TO MITIGATE THE DIFFICULTY FACED BY THE ASSESSEE, IN THIS REGARD THE CENTRAL B OARD OF DIRECT TAXES ITSELF HAS EXTENDED THE DUE DATE IN THIS REGARD. IN THIS VIEW OF THE MATTER WHEN THE ELECTRONIC APPEAL WAS DULY BEFORE HIM, LD. COMMISSIONER OF INCOME TAX HAS GONE HYPER TECHNICAL IN DISMISSING T HIS APPEAL BY THE ASSESSEE ONLY ON THE PLEA THAT THE APPEAL WAS NOT F ILED IN ELECTRONIC FORM. 5. IN OUR CONSIDERED OPINION IN THE FACTS AND CIRCU MSTANCES OF THE CASE THE ELECTRONIC APPEAL FILED BY THE ASSESSEE DESERVE D DUE CONSIDERATION BY THE LD. CIT(A). ACCORDINGLY, IN THE INTEREST OF JU STICE, WE REMIT THE ISSUE THE FILE OF LD. CIT(A). LD. CIT(A) IS DIRECTED TO C ONSIDER THE ISSUE ON MERITS AND PASS A SPEAKING ORDER AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 4 ITA NO.961/MUM/2018 BHUPENDRA H. MEHTA 6. IN THE RESULT, THIS APPEAL BY THE ASSESSEE STAND S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2019. SD/- SD/- (RAM LAL NEGI) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 11.03.2019 THIRUMALESH , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI