Vipul Ashok Desai, Pune V. Income-tax Officer, Ward - 2(5), PUNE

MA 4/PUN/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5146 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 17-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपीऱीय अधिकरण “बी” न्यायपीठ प ु णे म ें । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER विविि आिेदन सं. / MA No.04/PUN/2022 (Arising out of ITA No.1254/PUN/2018) ननिाारण िर्ा / Assessment Year : 2008-09 Shri Vipul Ashok Desai, 21/1, Sakal Nagar, Baner, Pune-411007 PAN : ACLPD5458N ......अऩीऱाथी / Appellant बनाम / V/s. The Income Tax Officer, Ward – 2(5), Pune ......प्रत्यथी / Respondent Assessee by : Shri P.D. Kudwa Revenue by : Shri S.P. Walimbe स ु नवाई की तारीख / Date of Hearing : 18-02-2022 घोषणा की तारीख / Date of Pronouncement : 22-02-2022 आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM : By this Miscellaneous Application the assessee seeks to rectify the alleged mistake apparent in the order dated 05-08-2021 passed by this Tribunal in ITA No. 1254/PUN/2018 for A.Y. 2008-09 in respect of non- adjudication of ground No. 2. 2 MA No. 04/PUN/2022, A.Y. 2008-09 2. The ld. AR submits that the CIT(A) dismissed the appeal on the ground that there was a delay of 11 days in filing the appeal before the first appellate authority. The assessee challenged the said ground vide ground No. 2 before this Tribunal. He submits that the ITAT did not adjudicate the said ground and restored the appeal to the file of CIT(A) for adjudication of the issue on merits. The ld. AR submits that the assessee e-filed the appeal before the CIT(A) on 27-04-2016 and the last date for filing the appeal is 28-04-2016 and argued that there was no delay in filing the appeal before the CIT(A) and referred to Page No. 1 of the paper book. The ld. DR did not dispute the same. We note that in Para No. 6 the CIT(A) discussed the delay and held there was a delay of 11 days, since, the appeal was filed on 09-05-2016, but, we find as evidence from Page No. 1 of the paper book which is an acknowledgment of receipt of form claimed to have filed Form No. 35 by the assessee vide e-Filing Acknowledgment Number 163714791270416 on 27-04-2016. Admittedly, the order of CIT(A) was served on the assessee on 29-03-2016 and the CIT(A) himself stated that the appeal should have been filed within 30 days i.e. latest by 28-04-2016. As discussed above and as can be observed from Page No. 1 of e-Filing of Acknowledgment, the assessee filed the appeal on 27-04-2016 and in our opinion, there was no delay in filing the appeal before the CIT(A) and it was well within the prescribed limitation on or before 28-04-2016. Thus, the findings of CIT(A) is incorrect and it is set aside. This observation vide this order is part and parcel of earlier order 05-08-2021 and accordingly ground No. 2 of Form 36 is allowed. Thus, the Miscellaneous Application filed by the assessee is allowed. 3 MA No. 04/PUN/2022, A.Y. 2008-09 3. In the result, the Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open court on 22 nd February, 2022. Sd/- Sd/- (R.S. Syal) (S.S. Viswanethra Ravi) VICE PRESIDENT JUDICIAL MEMBER ऩ ु णे / Pune; ददनाांक / Dated : 22 nd February, 2022. रवि आदेश की प्रनिलऱवप अग्रेवर्ि / Copy of the Order forwarded to : 1. अऩीऱाथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT(A)-3, Pune 4. The Pr. CIT-2, Pune 5. ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच, ऩ ु णे / DR, ITAT, “B” Bench, Pune. 6. गार्ड फ़ाइऱ / Guard File. //सत्यावऩत प्रतत// True Copy// आदेशान ु सार / BY ORDER, िररष्ठ विजी सविि / Sr. Private Secretary आयकर अपीलीय अविकरण ,पुणे / ITAT, Pune