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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAHUL CHAUDHARY
This appeal by the assessee is directed against order dated 22.03.2023 passed by the Ld. Commissioner of Income Tax (Appeals)-National Faceless Appeal Centre, Delhi (in short Ld. CIT(A)) for assessment year 2010-11, raised following grounds:-
1. The Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre erred in law and the facts and circumstances of the present case grossly erred in dismissing the appeal filed by the Appellant against order dated
31. March 2016 passed by the Deputy Commissioner of Income Tax Circle 10 (2) passed by the Deputy Commissioner of Income Tax Circle 10 (2) passed by the Deputy Commissioner of Income Tax Circle 10 (2) (2) Mumbai under Section 143 (3) read with Section 147 of the (2) Mumbai under Section 143 (3) read with Section 147 of the (2) Mumbai under Section 143 (3) read with Section 147 of the Income Tax Act1961. Income Tax Act1961. Limitation 2. The Commissioner of Income Tax (Appeals)/National Faceless 2. The Commissioner of Income Tax (Appeals)/National Faceless 2. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and Appeal Centre grossly erred in law and the facts and Appeal Centre grossly erred in law and the facts and circumstances of the present case to hold that the appeal filed by circumstances of the present case to hold that the appeal filed by circumstances of the present case to hold that the appeal filed by the Appellant was beyond the statutory time limit of 30 days the Appellant was beyond the statutory time limit of 30 days the Appellant was beyond the statutory time limit of 30 days prescribed under Section 249 (2) of the Income Tax Act, 1961. der Section 249 (2) of the Income Tax Act, 1961. der Section 249 (2) of the Income Tax Act, 1961.
3. The Commissioner of Income Tax (Appeals)/National Faceless 3. The Commissioner of Income Tax (Appeals)/National Faceless 3. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre grossly erred in law and the facts and Appeal Centre grossly erred in law and the facts and Appeal Centre grossly erred in law and the facts and circumstances of the case in not appreciating that Central Board circumstances of the case in not appreciating that Central Board circumstances of the case in not appreciating that Central Board of Direct Taxes (CBDT) vide of Direct Taxes (CBDT) vide Notification No. SO 637(E) [No. Notification No. SO 637(E) [No. 11/2016 (F No. 149/150/2015 11/2016 (F No. 149/150/2015-TPL)], dated 1 March 2016 TPL)], dated 1 March 2016 increased the time limit for filing appeals to 15 June 2016. increased the time limit for filing appeals to 15 June 2016. increased the time limit for filing appeals to 15 June 2016. Principles of Natural Justice Principles of Natural Justice 4. The Commissioner of Income Tax (Appeals) / National 4. The Commissioner of Income Tax (Appeals) / National 4. The Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre Faceless Appeal Centre erred in law and the facts and erred in law and the facts and circumstances of the case in not considering the submissions circumstances of the case in not considering the submissions circumstances of the case in not considering the submissions made by the Appellant before passing the order dated 22 March made by the Appellant before passing the order dated 22 March made by the Appellant before passing the order dated 22 March 2023 (Impugned Order). 2023 (Impugned Order).
The Commissioner of Income Tax (Appeals)/National Faceless 5. The Commissioner of Income Tax (Appeals)/National Faceless 5. The Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre err Appeal Centre erred in law and the facts and circumstances of ed in law and the facts and circumstances of the case in passing the Impugned Order without providing an the case in passing the Impugned Order without providing an the case in passing the Impugned Order without providing an opportunity of personal hearing to the Appellant which goes opportunity of personal hearing to the Appellant which goes opportunity of personal hearing to the Appellant which goes against the principles of natural justice against the principles of natural justice 6. The Appellant craves leave to add to and/or amend and/or 6. The Appellant craves leave to add to and/or am 6. The Appellant craves leave to add to and/or am delete and/or modify and /or alter the aforesaid grounds of delete and/or modify and /or alter the aforesaid grounds of delete and/or modify and /or alter the aforesaid grounds of appeal as and when the occasion demands appeal as and when the occasion demands
2. At the outset, before us the Ld. Counsel At the outset, before us the Ld. Counsel for for the assessee referred to ground no. 2 and submitted that Ld. CIT(A) has referred to ground no. 2 and submitted that Ld. CIT(A) has referred to ground no. 2 and submitted that Ld. CIT(A) has erroneously rejected the rejected the appeal of the assessee treating the same the assessee treating the same as filed beyond the statutory limitation period of 30 days, whereas in filed beyond the statutory limitation period of 30 days, whereas in filed beyond the statutory limitation period of 30 days, whereas in view of the Central Board of direct taxes circular No. 20/2016 dated view of the Central Board of direct taxes circular No. 20/2016 dated view of the Central Board of direct taxes circular No. 20/2016 dated 26.05.2016, the period for electronic filling of the appeals was the period for electronic filling of the appeals was the period for electronic filling of the appeals was extended up to 15.06.2016. The Ld. Counsel further submitted that up to 15.06.2016. The Ld. Counsel further submitted that up to 15.06.2016. The Ld. Counsel further submitted that in the case of the assessee the assessment order was served on the in the case of the assessee the assessment order was served on the in the case of the assessee the assessment order was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on 02.05.2023 whereas the appeal has been filed was due on 02.05.2023 whereas the appeal has been filed was due on 02.05.2023 whereas the appeal has been filed electronically before the Ld. CIT(A) on 15.06.2016 ally before the Ld. CIT(A) on 15.06.2016, which is well ally before the Ld. CIT(A) on 15.06.2016 within the extended period provided by the CBDT Circular (Supra). within the extended period provided by the CBDT Circular (Supra). within the extended period provided by the CBDT Circular (Supra). On the contrary the Ld. DR could not On the contrary the Ld. DR could not controvert the facts raised the facts raised by the Ld. Counsel for the the assessee, but, he relied on the order of t he relied on the order of the lower authorities.
We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. The Ld. CIT(A) has rejected the appeal relevant material on record. The Ld. CIT(A) has rejected the appeal relevant material on record. The Ld. CIT(A) has rejected the appeal on the ground that appeal filed electronically was beyond statutory on the ground that appeal filed electronically was beyond statutory on the ground that appeal filed electronically was beyond statutory time limit of 30 days time limit of 30 days from service of assessment order on the ce of assessment order on the assessee and the assessee had not filed any request on condonation and the assessee had not filed any request on condonation and the assessee had not filed any request on condonation of such delay. The relevant finding of the Ld. CIT(A) is reproduced he relevant finding of the Ld. CIT(A) is reproduced he relevant finding of the Ld. CIT(A) is reproduced as under:- 5.1 I have gone through the Assessment Order and submissions 5.1 I have gone through the Assessment Order and submissions 5.1 I have gone through the Assessment Order and submissions of the appellant. of the appellant. It is observed that the date of service of notice of It is observed that the date of service of notice of demand as declared by the appellant is 2nd April 2016 and the demand as declared by the appellant is 2nd April 2016 and the demand as declared by the appellant is 2nd April 2016 and the appellant has filed appeal on 15th June 2016 which is beyond appellant has filed appeal on 15th June 2016 which is beyond appellant has filed appeal on 15th June 2016 which is beyond statutory time limit of 30 days and the appellant has also not statutory time limit of 30 days and the appellant has also not statutory time limit of 30 days and the appellant has also not filed any request filed any request for condonation of such delay. 5.2 Since the appeal filing is time barred and in absence of any 5.2 Since the appeal filing is time barred and in absence of any 5.2 Since the appeal filing is time barred and in absence of any justified reason/ explanation the same is not maintainable ab justified reason/ explanation the same is not maintainable ab justified reason/ explanation the same is not maintainable ab initio.
Before us the Ld. Counsel Before us the Ld. Counsel for the assessee has relied on the the assessee has relied on the CBDT Circular No.20/2016 CBDT Circular No.20/2016 dated 26.05.2016. For ready reference said circular is reproduced as under: s reproduced as under: Subject: E-filing of appeals: Extension of time limit filing of appeals: Extension of time limit - reg. reg. Rule 45 of the Income Tax Rules1962, mandates compulsory e- Rule 45 of the Income Tax Rules1962, mandates compulsory e Rule 45 of the Income Tax Rules1962, mandates compulsory e filing of appeals before Commissioners of Income Tax (Appeals) filing of appeals before Commissioners of Income Tax (Appeal filing of appeals before Commissioners of Income Tax (Appeal
with effect from 01.03.2016 in respect of persons who are with effect from 01.03.2016 in respect of persons who are with effect from 01.03.2016 in respect of persons who are required to furnish return of income electronically. It has come to required to furnish return of income electronically. It has come to required to furnish return of income electronically. It has come to the notice of the Central Board of Direct Taxes (hereinafter the notice of the Central Board of Direct Taxes (hereinafter the notice of the Central Board of Direct Taxes (hereinafter referred to as the Board) that in some cases the taxpayers who referred to as the Board) that in some cases the taxpayers who referred to as the Board) that in some cases the taxpayers who were required to e e required to e-file Form 35, were unable to do so due to lack file Form 35, were unable to do so due to lack of knowledge about e of knowledge about e-filing procedure and/or technical issues in filing procedure and/or technical issues in e-filing Also, the EVC functionality for verification of e Also, the EVC functionality for verification of e Also, the EVC functionality for verification of e-appeals was made operational from 12.05.2016 for individuals and from was made operational from 12.05.2016 for individuals and from was made operational from 12.05.2016 for individuals and from 19.05.2016 for other persons 19.05.2016 for other persons Word limit for filing grounds of Word limit for filing grounds of appeal and mapping of jurisdiction of Commissioners of Income appeal and mapping of jurisdiction of Commissioners of Income appeal and mapping of jurisdiction of Commissioners of Income Tax (Appeals) were also a cause of grievance in some cases Tax (Appeals) were also a cause of grievance in some cases Tax (Appeals) were also a cause of grievance in some cases
2. The matter has been examined by the Board While the 2. The matter has been examined by the Board
2. The matter has been examined by the Board underlying issues relating to e underlying issues relating to e-filing of appeals have since been filing of appeals have since been addressed and resolved, in order to mitigate any inconvenience addressed and resolved, in order to mitigate any inconvenience addressed and resolved, in order to mitigate any inconvenience caused to the taxpayers on account of the new requirement of caused to the taxpayers on account of the new requirement of caused to the taxpayers on account of the new requirement of mandatory e-filing appeals it has been decided to extend the filing appeals it has been decided to extend the filing appeals it has been decided to extend the time limit for filing of such e time limit for filing of such e-appeals. E-appeals which were due appeals which were due to be filed by 15.05.2016 can be filed up to 15.06.2016All e- to be filed by 15.05.2016 can be filed up to 15.06.2016All e to be filed by 15.05.2016 can be filed up to 15.06.2016All e appeals filed within this extended period would be treated as appeals filed within this extended period would be treated as appeals filed within this extended period would be treated as appeals filed in time. appeals filed in time.
3. In view of the extended window for filing
3. In view of the extended window for filing e-appeals taxpayers appeals taxpayers who could not successfully e who could not successfully e-file their appeal and had filed paper file their appeal and had filed paper appeals are required to file an e appeals are required to file an e-appeal in accordance with Rule appeal in accordance with Rule 45 before the extended period i.c 45 before the extended period i.c 15.06.2016 Such e Such e-appeals would also be treated as appeals filed with would also be treated as appeals filed within time.
5. In the case, Ld. CIT(A) has mentioned that assessment order Ld. CIT(A) has mentioned that assessment order Ld. CIT(A) has mentioned that assessment order was served on the assessee on 02.04.2016 and therefore appeal was served on the assessee on 02.04.2016 and therefore appeal was served on the assessee on 02.04.2016 and therefore appeal before the Ld. CIT(A) was due on or before 02.05.2016. The Ld. before the Ld. CIT(A) was due on or before 02.05.2016. The Ld. before the Ld. CIT(A) was due on or before 02.05.2016. The Ld. CIT(A) has also recorded that this appeal was filed before him on CIT(A) has also recorded that this appeal was filed before CIT(A) has also recorded that this appeal was filed before 15.06.2016. The para 2 of the CBDT Circular has extended the time 15.06.2016. The para 2 of the CBDT Circular has extended the time 15.06.2016. The para 2 of the CBDT Circular has extended the time limit for electronic filling of the appeal limit for electronic filling of the appeal till 15.06.2016 till 15.06.2016, in respect of the appeals which were were due to filed by 15.05.2016. In view of the due to filed by 15.05.2016. In view of the above circular, the appeal filed electroni the appeal filed electronically by the assessee cally by the assessee is within limitation period. within limitation period.
6. Before us the Ld. Counsel of the assessee also referred to the Before us the Ld. Counsel of the assessee also referred to the Before us the Ld. Counsel of the assessee also referred to the order of the Ld. CIT(A) dated 31.10.2017 wherein he dismissed the order of the Ld. CIT(A) dated 31.10.2017 wherein he dismiss order of the Ld. CIT(A) dated 31.10.2017 wherein he dismiss appeal filed physically appeal filed physically by the assessee in view of the notification for in view of the notification for electronic filling of the appeal before the Ld. CIT(A). electronic filling of the appeal before the Ld. CIT(A).
7. In view of above In view of above, we set aside the order of the Ld. CIT(A) and set aside the order of the Ld. CIT(A) and direct to admit the appeal of the assessee direct to admit the appeal of the assessee in view of CBDT Circular in view of CBDT Circular (supra) and thereafter (supra) and thereafter adjudictae on merit in accordance with la on merit in accordance with law. Ground no. 2 appeal of the assessee is accordingly allowed. Other Ground no. 2 appeal of the assessee is accordingly allowed. Other Ground no. 2 appeal of the assessee is accordingly allowed. Other grounds raised
are rendered academic and therefore are rendered academic and therefore we not are rendered academic and therefore required to adjudicate upon required to adjudicate upon at this stage.
8. In the result, appeal of the assessee is allowed for statistical In the result, appeal of the assessee is allowed for statistical In the result, appeal of the assessee is allowed for statistical purpose.