Income Tax Appellate Tribunal - Mumbai
M/S.Britacel Exports Private Limited, ... vs Ito 9(2)(2), Mumbai on 28 November, 2019
आयकर अपीलीय अधिकरण "B" न्यायपीठ मब
ुं ई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL " B" BENCH, MUMBAI
श्री महावीर ससिंह, न्याययक सदस्य एविं श्री मनोज कुमार अग्रवाल, लेखा सदस्य के समक्ष ।
BEFORE SRI MAHAVIR SINGH, JM AND SRI MANOJ KUMAR AGGARWAL, AM
आयकर अपील सुं . / ITA No. 4873/Mum/2018
( यनर्ाा र ण वर्ा / Assessment Year 2010-11)
Britacel Exports Private Limited The Income Tax Officer
F-18, Street No. 23, MIDC Ward 9(2)(2)
बनाम /
Marol, Andheri (E), Aayakar Bhavan, Mumbai
Mumbai-400 093, Vs.
(अपीलार्थी / Appellant) (प्रत्यर्थी/ Respondent)
स्र्थायी ले खा सुं . / PAN No. AAACB9025B
अपीलार्थी की ओर से / Appellant by : Shri Pramod Kumar Paride, AR
प्रत्यर्थी की ओर से / Respondent by : Ms. Kavita P Kaushik, DR
सन
ु वाई की तारीख / Date of hearing: 28.11.19
घोर्णा की तारीख / Date of pronouncement: 28.11.19
आदे श / O R D E R
महावीर ससुंह, न्याययक सदस्य/
PER MAHAVIR SINGH, JM:
This appeal of assessee is arising out of the order of Commissioner of Income Tax (Appeals)-16, Mumbai [in short CIT(A)], in Appeal No. CIT(A)-16/ITO-9(2)(2)/IT-640/2015-16 vide order dated 13.07.2018. The Assessment was framed by the Income Tax Officer, Ward-9(2)(2), Mumbai (in short ITO/
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4 8 7 3 / Mu m / 2 0 1 8 AO) for the A.Y. 2010-11 vide order dated 10.03.2016 under section 143(3) read with section 147 of the Income-tax Act, 1961 (hereinafter 'the Act').
2. At the outset, it is noticed that the assessee has raised the issue as regard to violation of natural justice dismissing the appeal on the ground that the assessee has not filed the appeal electronically i.e. e-filing before CIT(A). For this assessee has raised the following ground: -
"1. Dismissal of appeal for not filing electronically - Rule 45 The Id. CIT(A) erred in dismissing the appeal after so many hearing on ground that the appeal was not filed electronically and suffers from technical default as per the mandate of Rule 45 (w.e.f. 01.04.2016) of Income Tax Rules. 1962 which was occurred for the first time: as the Appellant had not committed any breach of tax law; rejecting of hearing on merits and the dismissal of appeal on technical grounds is not justified and the appeal may be restored to CIT(A) for adjudication on merits."
3. At the outset, the learned Counsel for the assessee stated that this issue is squarely covered in favour assessee, wherein the Tribunal has remitted the matter back to the file of the CIT(A) for allowing opportunity to the assessee to file its appeal by way of e-filing and then decide the appeal on merits. The
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4 8 7 3 / Mu m / 2 0 1 8 Tribunal has consistently remitted the matter back to the file of the CIT(A) and particularly in the case of Astrex Reinforced Ltd. vs. ITO in ITA No. 426/Mum/2018 for AY 2010-11 vide order dated 16.05.2018, wherein exactly identical issue has been decided by the Tribunal and the same read as under: -
"6. We have heard both the parties and perused the materials available on record. It is an undisputed fact that the CBDT has mandated filing of appeal in electronic form after a certain date by issuing notification vide Notification No.SO 637(E) [No.11/2016 (F. No.149/150/2015-TPL)] dated 01.03.16 as per which the assessee is required to file form No.35 electronically. It is also an admitted fact that the 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 appeal electronically. Admittedly, the assessee has filed its appeal in paper form on 29.04.16. The assessee claims that it is unaware of the notification issued by the CBDT for filing appeals in electronic format, therefore, it has filed its appeal in manual form on 29.04.16. The assessee further claims that during transition
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4 8 7 3 / Mu m / 2 0 1 8 period the provisions of notification should not be applied strictly.
7. Having heard both the sides, we find merits in the arguments of the assessee for the reason that during transition period the provisions of any notification or circulars mandating the assessees to follow certain instructions should not be strictly applied. We further noticed that the assessee has filed its appeal in manual form and such appeal has been filed within the prescribed time under the Act. Therefore, we are of the considered view that merely because the assessee has not filed the appeal in electronic form, the assessee's appeal cannot be dismissed on technical grounds that too during transition period. We, further, noticed that the Hon'ble Supreme Court and various High Courts have already categorically stated that when technicalities and substantial justice is pitted against each other, the substantial justice deserves to be prevailed over technicalities. Therefore, we are of the considered view that the Ld. CIT(A) was erred in dismissing the appeal filed by the
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4 8 7 3 / Mu m / 2 0 1 8 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 assessee by directing the assessee to file its appeal in electronic format and also to condone delay in filing such appeal in electronic format. We also direct the Ld. CIT(A) to decide the issues on merits."
4. In view of the above, we set aside the order of CIT(A) and remand the matter back to his file for allowing opportunity of the assessee to file the appeal by way of e-filing and then decide the appeal on merits.
5. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 28.11.2019.
Sd/- Sd/-
(मनोज कुमार अग्रवाल / MANOJ KUMAR AGGARWAL) (महावीर ससिंह /MAHAVIR SINGH)
(लेखा सदस्य / ACCOUNTANT MEMBER) (न्याययक सदस्य/ JUDICIAL MEMBER)
मुिंबई, ददनािंक/ Mumbai, Dated:28.11.2019. सदीप सरकार, व.यनजी सधिव / Sudip Sarkar, Sr.PS
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4 8 7 3 / Mu m / 2 0 1 8 आदे श की प्रयिसलपप अग्रेपिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त(अपील) / The CIT(A)
4. आयकर आयुक्त / CIT
5. ववभागीय प्रयतयनधर्, आयकर अपीलीय अधर्करण, मुिंबई / DR, ITAT, Mumbai
6. गार्ा फाईल / Guard file.
आदे शानसार/ BY ORDER, सत्यावपत प्रयत //True Copy// उप/सहायक पुंजीकार (Asstt. Registrar) आयकर अपीलीय अधिकरण, मुिंबई / ITAT, Mumbai