LATE SHRI HANSRAJ POPAT GALA THROUGH L/H.SMT. LEELAVANTI H. GALA, MUMBAI v. ITO 22 (1)(5), MUMBAI

ITA 6382/MUM/2018 | 2013-2014
Pronouncement Date: 15-11-2019 | Result: Allowed

Appeal Details

RSA Number 638219914 RSA 2018
Assessee PAN AABPG4071E
Bench Mumbai
Appeal Number ITA 6382/MUM/2018
Duration Of Justice 1 year(s) 9 day(s)
Appellant LATE SHRI HANSRAJ POPAT GALA THROUGH L/H.SMT. LEELAVANTI H. GALA, MUMBAI
Respondent ITO 22 (1)(5), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 15-11-2019
Last Hearing Date 11-11-2019
First Hearing Date 11-11-2019
Assessment Year 2013-2014
Appeal Filed On 05-11-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI RAVISH SOOD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6382/MUM/2018 ASSESSMENT YEAR: 2013-14 LATE SHRI HANSRAJ POPAT GALA THROUGH L/H. SMT LEELAVANTI H. GALA FLAT NO.07 2 ND FLOOR MAHAVIR DARSHAN BUILDING OPP. NAVNEET MOTOR JUHU LANE ANDHERI (W) MUMBAI-400058. VS. INCOME TAX OFFICER 22(1)(5) ROOM NO. 404 4 TH FLOOR EARNEST HOUSE MUMBAI-400021. PAN NO. AABPG4071E ASSESSEE BY : SHRI BHARIN PAREKH AR REVENUE BY : SHRI K. BHOOPATHI DR DATE OF HEARING : 11/11/2019 DATE OF PRONOUNCEMENT : 15/11/2019 ORDER PER N.K. PRADHAN AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2013-14. THE APPEAL IS DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS)-34 MUMBAI [IN SHORT CIT(A )] AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME T AX ACT 1961 (THE ACT). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER: A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE COMMISSIONER OF INCOME TAX-21 MUMBAI HEREINABOVE REFERRED TO AS THE LD. CIT(A) HAS ERRED IN ASSESSING TOTAL INCO ME OF THE APPELLANT AT RS.92 69 164/- INSTEAD OF RS.11 07 348 /- AS RETURNED APPELLANT RESPONDENT ITA 6382/MUM/2018/A.Y.2013-14 2 HANSRAJ POPAT GALA BY THE APPELLANT. THE RETURNED INCOME OF THE APPELL ANT MAY PLEASE BE ACCEPTED. B. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW HAS DISMISSED THE APPEAL WITHOUT CONSI DERING THE ACTUAL FACTS OF THE CASE DUE TO TECHNICAL ISSUE OF APPEAL FILING. THE SAID DECISION IS NOT VALID. C. ALL THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. D. THE ASSESSEE CRAVES LEAVE TO ADD ALTER AND AMEND THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2013- 14 ON 04.12.2013 DECLARING TOTAL INCOME OF RS.11 07 348/-. THE ASSES SMENT WAS COMPLETED U/S. 143(3) DATED 02.03.2016 BY THE ASSESSING OFFIC ER (AO) DETERMINE THE INCOME AT RS.92 62 160/-. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A) IN MANUAL FORM ON 13.04.2016. IT IS OBSERVED BY THE LD. CIT(A) THAT THE CENTRAL BOARD OF DIRECT TAXES (CBDT ) HAS PRESCRIBED MANDATORY E-FILING OF APPEALS OF SPECIFIED CATEGORY OF ASSESSEES VIDE NOTIFICATION NO. SO 637(E) [F. NO. 149/150/2015-TPL )] DATED 01.03.2016. FURTHER CBDT HAS MADE AMENDMENTS IN THE INCOME TAX RULES 1962 FOR SUBSTITUTION OF RULE 45 AND FORM NO. 35. THE LD. CI T(A) FURTHER NOTED THAT IT HAS BECOME COMPULSORY FOR THOSE WHO ARE REQUIRED TO FURNISH THEIR RETURN OF INCOME ELECTRONICALLY TO ALSO FILE THEIR APPEALS BEFORE A CIT(A) ON OR AFTER 01.03.2016. IN THIS REGARD HE REFERRED TO THE ABOVE NOTIFICATION STATING THAT AN APPEAL TO THE CIT(A) SHALL BE MADE ELECTRONICALLY IN FORM 35 UNDER A DIGITAL SIGNATURE/ELECTRONIC VERIFICATIO N CODE. THUS OBSERVING THAT THE MANUAL APPEAL FILED IS NOT ADMISSIBLE AS P ER PROVISIONS OF SECTION ITA 6382/MUM/2018/A.Y.2013-14 3 HANSRAJ POPAT GALA 249(1) THE LD. CIT(A) TREATED THE APPEAL AS NOT M AINTAINABLE AND INVALID AB INITIO. THE LD. CIT(A) THUS HELD THAT: 5.3 THE APPELLANT IS AT LIBERTY TO FILE THE APPEAL ELECTRONICALLY AS PER PROVISIONS OF RULE AND SEEK CONDONATION OF DELAY IN FILING OF APPEAL WHICH MAY BE EXAMINED AT THE APPROPRIATE TIME. 4. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE SUBM ITS THAT SINCE THE APPELLANT HAD DIED TO FILE THE PRESENT APPEAL THE RE WAS A REQUIREMENT TO APPOINT THE LEGAL HEIR WHICH REQUIRED COLLECTION VA RIOUS DOCUMENTS SUCH AS LETTERS FOR THE BANK LEGAL HEIR CERTIFICATE ETC . AND THEREFORE THE APPEAL WAS FILED MANUALLY AND THE SAME WAS ALSO ACCEPTED B Y THE OFFICE OF THE CIT(A). REFERRING TO THE ORDER DATED 16.05.2018 OF THE ITAT G BENCH MUMBAI IN THE CASE OF M/S. ASTERIX REINFORCED LTD. V. ITO [ITA NO. 426/M/2018] FOR AY 2010-11 THE LD. COUNSEL SUBMITS THAT THE CIT(A) BE DIRECTED TO ADMIT THE APPEAL TO BE FILED IN ELECTRO NIC FORMAT AND THE DELAY IN FILING SUCH APPEAL BE CONDONED. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESENTA TIVE (DR) SUBMITS THAT THE ORDER PASSED BY THE LD. CIT(A) BE AFFIRMED AS HE HAS HELD THAT THE APPELLANT IS AT LIBERTY TO FILE THE APPEAL ELECTRONICALLY AS PER PROVISIONS OF RULE AND SEEK CONDONATION OF DELAY IN FILING OF APPEAL. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. WE FIND THAT A SIMIL AR ISSUE AROSE BEFORE THE TRIBUNAL IN M/S. ASTERIX REINFORCED LTD (SUPRA) AND VIDE ORDER DATED 16.05.2018 THE BENCH HELD AS UNDER: 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS AN UNDISPUTED FACT THAT THE CBDT H AS MANDATED FILING OF ITA 6382/MUM/2018/A.Y.2013-14 4 HANSRAJ POPAT GALA APPEAL IN ELECTRONIC FORM AFTER A CERTAIN DATE BY I SSUING NOTIFICATION VIDE NOTIFICATION NO.SO 637(E) [NO.11/2016 (F. NO.149/15 0/2015-TPL)] DATED 01.03.16 AS PER WHICH THE ASSESSEE IS REQUIRE D TO FILE FORM NO.35 ELECTRONICALLY. IT IS ALSO AN ADMITTED FACT THAT TH E CBDT HAS EXTENDED SUCH DUE DATE OF FILING OF APPEAL IN ELECTRONIC MODE UP TO 15.06.16 CONSIDERING THE HARDSHIPS/TECHNICAL GLITCHES IN FILING THE APPE AL ELECTRONICALLY. ADMITTEDLY THE ASSESSEE HAS FILED ITS APPEAL IN PA PER FORM ON 29.04.16. THE ASSESSEE CLAIMS THAT IT IS UNAWARE OF THE NOTIF ICATION ISSUED BY ITA NO.426/M/2018 5 M/S. ASTERIX REINFORCED LTD. THE CB DT FOR FILING APPEALS IN ELECTRONIC FORMAT THEREFORE IT HAS FIL ED ITS APPEAL IN MANUAL FORM ON 29.04.16. THE ASSESSEE FURTHER CLAIMS THAT DURING TRANSITION PERIOD THE PROVISIONS OF NOTIFICATION SHOULD NOT BE APPLIED STRICTLY. 7. HAVING HEARD BOTH THE SIDES WE FIND MERITS IN T HE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT DURING TRANSITION PERI OD THE PROVISIONS OF ANY NOTIFICATION OR CIRCULARS MANDATING THE ASSESSE ES TO FOLLOW CERTAIN INSTRUCTIONS SHOULD NOT BE STRICTLY APPLIED. WE FUR THER NOTICED THAT THE ASSESSEE HAS FILED ITS APPEAL IN MANUAL FORM AND SU CH APPEAL HAS BEEN FILED WITHIN THE PRESCRIBED TIME UNDER THE ACT. THE REFORE WE ARE OF THE CONSIDERED VIEW THAT MERELY BECAUSE THE ASSESSEE HA S NOT FILED THE APPEAL IN ELECTRONIC FORM THE ASSESSEE'S APPEAL CA NNOT BE DISMISSED ON TECHNICAL GROUNDS THAT TOO DURING TRANSITION PERIOD . WE FURTHER NOTICED THAT THE HON'BLE SUPREME COURT AND VARIOUS HIGH COU RTS HAVE ALREADY CATEGORICALLY STATED THAT WHEN TECHNICALITIES AND S UBSTANTIAL JUSTICE IS PITTED AGAINST EACH OTHER THE SUBSTANTIAL JUSTICE DESERVES TO BE PREVAILED OVER TECHNICALITIES. THEREFORE WE ARE OF THE CONSI DERED VIEW THAT THE LD. CIT(A) WAS ERRED IN DISMISSING THE APPEAL FILED BY THE ASSESSEE AS NOT MAINTAINABLE HENCE WE SET ASIDE THE ISSUE TO THE FILE OF THE LD. CIT(A) AND DIRECT HIM TO ADMIT THE APPEAL FILED BY THE ASS ESSEE BY DIRECTING THE ASSESSEE TO FILE ITS APPEAL IN ELECTRONIC FORMAT AN D ALSO TO CONDONE DELAY IN FILING SUCH APPEAL IN ELECTRONIC FORMAT. WE ALSO DIRECT THE LD. CIT(A) TO DECIDE THE ISSUES ON MERITS. ITA 6382/MUM/2018/A.Y.2013-14 5 HANSRAJ POPAT GALA 6. FACTS BEING IDENTICAL WE FOLLOW THE ABOVE ORDER OF THE CO-ORDINATE BENCH AND RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) TO ADMIT THE APPEAL TO BE FILED IN ELECTRONIC FORMAT BY THE ASSE SSEE AND ALSO TO CONDONE THE DELAY IN FILING SUCH APPEAL IN ELECTRONIC FORMA T AND DECIDE THE ISSUES ON MERITS. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15.11.2019 SD/- SD/- (RAVISH SOOD) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 15/11/2019 SUBHANKAR PS 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. /ASSISTANT REGISTRAR) ITAT MUMBAI