UNIQUE PROPERTIES & SECURITIES PVT. LTD., MUMBAI V. ACIT CENT. CIR. - 38, (PRESENTLY DCIT CENT. CIR. 6(3)), MUMBAI

ITA 991/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8446 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 13-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Assessee Lawyers: PAWAN SARAF
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 991/MUM/2017 (ASSESSMENT YEAR 2010-11) M/S.UNIQUE PROPERTIES & SECURITIES PVT. LTD. 4 TH FLOOR, MALHOTRA HOUSE, OPP. GPO, FORT, MUMBAI 400 001. PAN: AAACU 0702G ...... APPELLANT VS. THE ACIT, CEN.CIR.38, (PRESENTLY DCIT, CEN.CIR.6(3) MUMBAI -400 021. .... RESPONDENT APPELLANT BY : SHRI PAWAN SARAF RESPONDENT BY : SHRI RAM TIWARI DATE OF HEARING : 22/08/2017 DATE OF PRONOUNCEMENT : 10/11/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTA INING TO ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST AN ORDE R PASSED BY THE CIT(A) -54, MUMBAI DATED 04/11/2016, WHICH IN TUR N ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 31/ 12/2012. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN THIS APPE AL IS AGAINST THE DECISION OF THE CIT(A) IN DISMISSING THE APPEAL OF THE ASSESSEE IN-LIMINE 2 ITA NO. 991/MUM/2017 (ASSESSMENT YEAR 2010-11) WITHOUT NOTICING THAT THE DEFECT POINTED OUT STOOD RECTIFIED EVEN PRIOR TO PASSING OF ORDER BY THE CIT(A). 3. BRIEFLY PUT, THE RELEVANT FACTS ARE THAT THE ASS ESSEE FILED AN APPEAL BEFORE THE CIT(A) ON 18/11/2015, WHICH WAS N OT ACCOMPANIED BY THE APPEAL FEE OF RS.1,000/-, AS PRESCRIBED IN TERMS OF SECTION 249(1)(II) OF THE ACT . THE RELEVANT DISCUSSION IN THE ORDER OF THE CIT(A) REVEALS THAT WHEN ASSESSEE WAS MADE AWARE OF THE DE FECT, ASSESSEE SUBMITTED THROUGH A COMMUNICATION DATED 03/11/2016 THAT THE REQUISITE FEE WAS PAID ON 13/10/2016 AND A COPY OF THE CHALLAN WAS ALSO ANNEXED THERETO. THE CIT(A) TOOK THE OPINION THAT S INCE THE REQUISITE FEE HAS BEEN PAID SUBSEQUENT TO THE FILING OF THE A PPEAL AND, THEREFORE, IT WAS NOT IN COMPLIANCE WITH THE REQUIREMENTS OF S ECTION 249(1)(II) OF THE ACT, WHICH MANDATE THAT THE MEMO OF APPEAL BE ACCOMPANIED BY THE REQUISITE FEE. THEREFORE, HE HAS DISMISSED THE APPEAL AS NOT MAINTAINABLE. 4. BEFORE US, THE LD.REPRESENTATIVE FOR THE ASSESSE E VEHEMENTLY POINTED OUT THAT NON-PAYMENT OF THE APPEAL FEE AT T HE TIME OF FILING OF APPEAL WAS AN INADVERTENT MISTAKE, WHICH WAS IMMEDI ATELY RECTIFIED WHEN IT CAME TO THE NOTICE OF THE ASSESSEE IN THE C OURSE OF THE APPEAL PROCEEDINGS ITSELF. THEREFORE, IT IS CONTENDED THA T THE DELAY IN PAYMENT OF APPEAL FEE BE CONDONED AND THE APPEAL FILED BY T HE ASSESSEE BEFORE THE CIT(A) BE RESTORED FOR ADJUDICATION ON MERITS. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE REITERATED THE STAND OF THE CIT(A), WHICH IS TO BE EFFECT THAT NON- ACCOMPANIMENT OF THE APPEAL FEE ALONGWITH THE MEMO OF APPEAL WAS A 3 ITA NO. 991/MUM/2017 (ASSESSMENT YEAR 2010-11) FATAL MISTAKE AND, THEREFORE, THE APPEAL HAS RIGHTL Y BEEN DISMISSED AS NON-MAINTAINABLE. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. NO DOUBT, SECTION 249(1) OF THE ACT PRESCRIBES THAT EVERY APP EAL MADE TO THE CIT(A) SHALL BE ACCOMPANIED BY THE APPEAL FEE PRESC RIBED THEREIN. FACTUALLY SPEAKING, IN THE INSTANT CASE, WHEN THE A PPEAL WAS FILED BY THE ASSESSEE, THE PRESCRIBED APPEAL FEE OF RS.1,000/- W AS NOT ANNEXED. SUBSEQUENTLY, BEFORE THE APPEAL WAS TAKEN UP FOR FI NAL DETERMINATION BY THE CIT(A), ASSESSEE PAID THE APPEAL FEE OF RS.1 ,000/- ON 13/10/2016 AND PRODUCED THE CHALLAN. ASSESSEE REQUESTED TH E CIT(A) TO CONDONE THE DELAY AS IT WAS ON ACCOUNT OF A CLERICAL ERROR . THE CIT(A) DID NOT CONDONE THE DELAY ON THE GROUND THAT THE APPEAL WAS NECESSARILY TO BE ACCOMPANIED BY THE PRESCRIBED FEE AND IN THE ABSE NCE OF THE REQUISITE FEE, THE APPEAL WAS NOT MAINTAINABLE. IN OUR CONS IDERED OPINION, THE APPROACH OF THE CIT(A) IS QUITE CONTRARY TO THE PRO POSITION EXPLAINED BY THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS., 167 ITR 471(SC). AS PER TH E HON'BLE SUPREME COURT, WHERE TECHNICAL CONSIDERATIONS ARE PITTED AG AINST SUBSTANTIAL JUSTICE, THEN THE SUBSTANTIAL JUSTICE SHOULD PREVAI L AND TECHNICAL CONSIDERATIONS SHOULD NOT STAND IN THE WAY. EVEN I F ONE HAS TO CONSIDER THAT THE APPEAL FILED WAS DEFECTIVE IN THE ABSENCE OF THE APPEAL FEE, THE NON-PAYMENT OF FEE IS A RECTIFIABLE DEFECT; AND, ON CE THE DEFECT HAS BEEN RECTIFIED, THE CIT(A) OUGHT TO HAVE ADMITTED T HE APPEAL FOR ADJUDICATION ON MERITS, ESPECIALLY CONSIDERING THE FACT THAT THE REASONS ADVANCED FOR NON-PAYMENT OF FEE IN TIME, HAVE NOT B EEN FOUND TO BE LACKING IN BONA-FIDES. PERTINENTLY, ASSESSEE EXPL AINED BEFORE THE CIT(A) 4 ITA NO. 991/MUM/2017 (ASSESSMENT YEAR 2010-11) THAT THE OFFICE STAFF WHO PRESENTED THE APPEAL MADE A MISTAKE AND THAT MERELY BECAUSE OF A BONAFIDE CLERICAL ERROR ASSESS EE OUGHT NOT TO BE MADE TO SUFFER BY TREATING THE APPEAL AS NON-MAINT AINABLE. THE DISCUSSION BY THE CIT(A) DOES NOT SHOW THAT THE REA SONS ADVANCED BY THE ASSESSEE HAVE BEEN FOUND TO BE NON-BONAFIDE OR FALLACIOUS, IN ANY MANNER. THEREFORE, CONSIDERING THE FACTS AND CIRCU MSTANCES OF THE CASE AND THE AFORESAID DISCUSSION WE DEEM IT FIT AND PRO PER TO HOLD THAT THE CIT(A) WAS WRONG IN TREATING THE APPEAL OF THE ASSE SSEE AS NON- MAINTAINABLE. ACCORDINGLY, WE SET-ASIDE THE IMPUGN ED ORDER AND RESTORE THE APPEAL OF THE ASSESSEE BEFORE THE CIT( A) WITH DIRECTION TO ADJUDICATE THE APPEAL DENOVO ON MERITS. NEEDLESS TO MENTION, THE CIT(A) SHALL DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERITS AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF B EING HEARD AS PER LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 10/11/2017. SD/- SD/- (PAWAN SINGH) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 10/11/2017 VM , SR. PS 5 ITA NO. 991/MUM/2017 (ASSESSMENT YEAR 2010-11) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI