AGORA PLAZA COMMERCIAL PREMISES CHSL,MUMBAI vs. INCOME TAX OFFICER, MUMBAI

The grounds of appeal read as under : • The commissioner of Income Tax (Appeal) dismissed the case as the challan of Rs.1000/- was not paid separately. • The challan was paid immediately after the hearing. • However, the case was rejected by following the decision of Hon'ble Hyderabad ITAT as not maintainable. • Though, the CIT (A) had agreed to all the explanations and case-laws provided by us. • As per section 80P (2)(d) of the Income Tax Act 1961,only interest or dividend derived by a co-operative society from its investments with any other co-operative society is eligible for deduction and the interest in respect of which deduction is derived from bank.

At the outset, we note that in this case, Ld.CIT(A) has dismissed the assessee’s appeal as unadmitted despite noting that assessee has duly paid the prescribed fee of Rs. 1000/- even when the appeal was pending before him as there was some confusion regarding the earlier payment, which was on account of outstanding tax. The facts in this regard recorded by Ld.CIT(A) himself reads as under:-

Thereafter, Ld.CIT(A) proceeded to examining the law in this regard and meaning of word ‘shall’ in provisions of sec. 249(1). Thereafter, refer in to few Tribunals decisions where Tribunal has dismiss the appeal on account non payment required fee, he dismissed the assessee’s appeal as non maintainable.

Against the above order, assessee is in appeal before us.

We have heard both the parties and perused the records. We find that it is settled law that interest of justice should prevail where over the web of hyper technicalities. Here, we note that it was duly stated to Ld.CIT(A) that the amount paid by the 3 Agora Plaza Commercial Premises Co-op Society Ltd. assessee earlier of Rs. 76,508/- was mistakenly taken to have included to Rs.1000/- appeal fee paid and after the mistake was found during the course of appellate proceedings itself, the assessee paid an amount and produced challan before the Ld.CIT(A). We find that on the facts and circumstances of this case, the appeal was valid and Ld.CIT(A) should have adjudicated the issue on merits. The case laws from ITAT referred by Ld.CIT(A) are not relevant as in those facts ITAT has decided on the appeals, which were made before the ITAT. Moreover, the facts as prevailing in this case are not pari materia with the facts appearing therein. Without examining these aspects, Ld.CIT(A) has erred in dismissing the assessee’s appeal as not maintainable. Accordingly, we remit the issue to the file of Ld.CIT(A). Ld.CIT(A) is directed to pass an order on merits of the case after giving the assessee proper opportunity of being heard.

In the result, appeal by the assessee stands allowed for statistical purpose.