2023 (6) TMI 1040 - HC - Income Tax

Dismissal of appeal by tribunal on non filling of paper book - HELD THAT - On 23/02/2022, this Court had directed respondent no.1 to file an affidavit after inspecting the Records and Proceedings and make a statement whether such a paperbook was filed. The affidavit has been filed, but it only says that paperbook was not found. We would, however, agree with Mr. Jain that just because the paperbook is not found in the Records and Proceedings of the Tribunal, it does not mean it was not filed. Petitioner has filed an affidavit through its Director stating that the paperbook was filed. A copy of the paperbook was also served on 01/10/2019 upon the departmental representative through covering letter addressed to the Registrar, Appellate Tribunal, CGO Building, Mumbai. To the averments of petitioner that such a paperbook was filed, there is no denial. We would lean in favour of petitioner and accept petitioner s explanation that such a paperbook containing 71 pages was filed. Without going into or dealing with this point, the Tribunal has simply rejected the Misc. applicatoin. We hereby quash and set aside the impugned order dated 18/05/2021 and remand the matter to the Tribunal.

Summary

Issues involved: Impugning an order passed by the Income Tax Appellate Tribunal (ITAT) rejecting Misc. Application, non-consideration of second paperbook by the Tribunal, and the subsequent appeal for Assessment Year 2014-15.

Impugning Order by ITAT:
The petitioner appealed against an order by the ITAT rejecting their Misc. Application arising from ITA No. 3141/Mum/2018 for Assessment Year 2014-15. The petitioner's representative presented a paperbook during the hearing, containing 43 pages, to demonstrate that the office premises in question did not form part of the block of assets for which no depreciation was claimed under the Income Tax Act, 1961. Despite filing a second paperbook with 71 pages, the ITAT's order did not consider this additional submission, leading to the filing of a Misc. Application.

Non-Consideration of Second Paperbook:
In the impugned order, the ITAT only referred to the initial 43-page compilation, failing to acknowledge the subsequent submission of a 71-page paperbook by the petitioner. The petitioner contended that the second paperbook was not taken into account by the Tribunal, despite having been filed and served on the Departmental Representative. The Court directed the respondent to confirm the existence of the second paperbook, and although it was not found in the Records and Proceedings, the Court accepted the petitioner's assertion that it was indeed filed.

Remand to the Tribunal:
Given the non-consideration of the second paperbook by the ITAT, the Court quashed the impugned order and remanded the matter back to the Tribunal. The petitioner was instructed to refile the compilation within two weeks, which the Tribunal must duly consider before determining if any modifications are required to the previous order dismissing the petitioner's appeal. The petition was disposed of without making any observations on the merits of the case.