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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 769/Mum/2021 (A.Y: 2013-14) Power Exchange India Vs. DCIT – 14(2)(2) Ltd., 4th Floor, Aayakar 9th Floor, 901, Sumer Bhavan, MK Road Plaza, Marol Maroshi Mumbai – 400020. Road, Andheri East, Mumbai – 400059. �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAECP6452C Appellant .. Respondent Appellant by : Mr. Sunil Nahta.AR Respondent by : Mr. S.G. Menon. Sr. DR Date of Hearing 09.02.2022 Date of Pronouncement 14.02.2022 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The assessee has filed the appeal against the order of the CIT(A)-National Faceless Appeal Centre(NFAC) Delhi passed u/s 143(3) and 250 of the Act. The assessee has raised the following grounds of appeal: 1.(a) On facts and circumstances of the case, the impugned order passed by the Commissioner of Income Tax (Appeals) [Ld. CIT(A)] dismissing the appeal electronically filed by the
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appellant against order under section 143(3) of the Income Tax Act, 1961 ("the Act") in limine as not maintainable on the ground that appeal had not been filed electronically within time and no condonation of delay in filing of appeal was filed, is illegal and bad in law. (b) On facts and circumstances of the case, the Id. CIT(A) erred on facts and in law in not treating the electronic filing of appeal within time considering that the appellant having filed the paper appeal on 4th April 2016 within 30 days time limit and thereafter also electronic filed appeal on 13th April, 2016 within the extended time limit window provided as per Circular No. 20/2016 dated 26.05.2016. (c) On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in dismissing the appeal without giving an adequate opportunity of being heard and as such doing so is wrong and contrary to the provisions of the Act and Rules and Regulations made thereunder. (d) The order passed by the Id. CIT (A) on this technical ground may be set aside and he may be directed to consider the appeal and issues on merits. Without prejudice to above ground of appeal, 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the Ld. AO erred in restricting the claim of Computer Software, Computer Automation, IT Consultancy Charges and Computer Trading Application and Computer Systems forming part of the block of assets of "Computer including computer software" at the rate of 60% as claimed by the appellant and thereby erred in disallowing depreciation allowance of Ps. 28,11,518/- as claimed by the appellant u/s 32(1) of the Income Tax Act, 1961 and the reasons assigned for doing so are wrong and contrary to the provisions of the income tax act and the rules made there under. 3. On the facts and in the circumstances of the case and in law, the ld. CIT(A) failed to appreciate that the Ld. AO erred in initiating penalty proceedings u/s 271(1)(c) of the Act in
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respect of depreciation allowance of Rs. 28,11,518/- and reasons assigned by him are wrong and contrary to the facts of the case, provisions of Income Tax Act, 1961 and the rules made thereunder.
The brief facts of the case are that the assessee company is engaged in the business of facilitating trading in power, innovative and credible solutions to transforms the power markets. The assessee has filed the return of income for the A.Y 2013-14 on 28.09.2013 disclosing a total income(Loss)of Rs. 7,93,33,180/- and the return of income was processed u/s 143(1) of the Act. Subsequently, the case was selected for scrutiny and notice u/s 143(2) and 142(1) of the Act was issued. In compliance, the Ld.AR of the assessee has filed the details of return of income, copy of annual report and tax audit report and the case was discussed. The A.O on verification of the financial statements find that the assessee has revenue from operations of Rs. 7,60,64,677/- and the assessee has claimed the depreciation @ 60% on computer software, computer automation, computer trading and computer systems, and IT consultancy charges. Whereas the A.O has called for explanations on claim of depreciation and the assessee has filed
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the details on 16.02.2015 referred at Para 6.2 of the assessment order. But the claim was not be accepted, whereas in the assessment year 2011-12 & 2012-13 the assessee has accepted that the facts that the assessee has procured and installed various computer software and claimed depreciation @60% but it was restricted under the provisions of Sec. 32(1)(ii) of the Act, were the expenditure incurred on acquiring the license is eligible for depreciation @25%. The A.O. has relied on earlier years findings and restricted the depreciation @ 25% on intangible assets and Rs. 28,11,518/- claimed as excess depreciation is disallowed and assessed the total income (Loss) of Rs. 7,99,33,180/- and passed the order u/s 143(3) of the Act dated 27.02.2016.
Aggrieved by the order, the assessee has filed an appeal before the CIT(A). Whereas, the CIT(A) has considered the grounds of appeal and find that there is a delay in filing the appeal by 4 days as the assessee has filed the Form-35 on 13.04.2016. The CIT(A) without going into the merits of the appeal has observed that the assessee has not explained the
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delay refereed at page 3 Para 4.2 of the order and dismissed the assessee appeal in limine.
4.2. From the above,it is clear that proper evidence along with justification should be given for such a delay if the appeal is filed after 30 days time period. Here the impugned order was passed on 27.02.2016 and the appellant claims to have received on 08.03.2016 and the appeal was filed on 13.04.2016 i.e. after 4 days from the date of service of order and no reason whatsoever has been rendered by the appellant for such a delay nor any application for condonation has been filed. However, the appellant filed submission in respect of notice under section 250 of the Income Tax Act, 1961, but no condonation letter was filed in respect of delay in filing of appeal. In absence of any application from the appellant regarding condonation of delay, I do not find any reason to condone the delay in filing appeal. Therefore the appeal deserves to be dismissed in limine.
Aggrieved by the order of the ld. CIT(A), the assessee has filed an appeal before the Hon’ble Tribunal.
At the time of hearing, the ld. AR of the assessee submitted that the CIT(A) has dismissed the assessee’s appeal, because the assessee has not filed as per the procedure laid down under Rule 45 & 46 of Income Tax Rules, 1962. Whereas, the assessee has filed the appeal manually on 04.04.2016 and again electronically on 13-04-2016 within the extended
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period as per CBDT circular no.20/2016.The amendment in filling the appeal is w.e.f 1-3-2016 and due to technical glitches the appeal was filed electronically subsequently. The ld.AR prayed that the assessee be provided an opportunity to substantiate the case with evidences on merits and prayed for allowing the appeal. Contra, the Ld.DR supported the order of the CIT(A).
We have heard the rival submissions and perused the material available on record. The sole crux of the disputed issue that the assessee has filed the appeal in paper form on 4.04.2016. Further, we find that as per the amendment and procedure laid down under Rule 45 & 46 of the Income Tax Rules, 1962 w.e.f. 01.03.2016. The appeal in Form No. 35 has to be filed electronically, whereas the assessee has filed the appeal in electronic form on 13-4-2016 due to technicalities/glitches in filing the appeal electronically. Further the assessee was not provided an opportunity to file the explanations on delay.
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We have considered the facts of technicalities in filing the appeal electronically and the amendment effective from 01.03.2016. Accordingly, to meet the ends of justice, we set aside the order of the CIT(A) and restore the disputed issue to the file of the CIT(A) to adjudicate afresh on merits and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information and comply with appeal filling Rules for early disposal of appeal and allow the grounds of appeal of the assessee for statistical purposes.
In the result, the appeal filed by the assessee is treated as allowed for statistical purposes.
Order pronounced in the open court on 14.02.2022.
Sd/- Sd/- (OM PRAKASH KANT) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated 14.02.2022
KRK, PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant
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��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / The CIT(A) 4. आयकर आयु�त(अपील) / Concerned CIT �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Mumbai 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// 1. ( Asst. Registrar) ITAT, Mumbai