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Income Tax Appellate Tribunal, F BENCH, MUMBAI
order : 19.01.2023 O R D E R Per Rahul Chaudhary, Judicial Member: 1. By way of the present appeal the Appellant has challenged the order, dated 23.09.2022, passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as „the CIT(A)‟] for the Assessment Year 2013-14 whereby the Ld. CIT(A) had dismissed the appeal against the Assessment Order, dated 21.03.2016, passed under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟).
The Appellant has raised following grounds of appeal: Assessment Year: 2013-14
1. Matter covered by earlier ITAT order in favour of assessee- The case of appellant which was filled before CIT(A) is from the one of the covered matter in assessee‟s own case for A.Y. 2011-12. Since the issue was already been decided in favour of appellant by Mumai ITAT in earlier years, the appellant prays before Your Honour to delete the order passed by CIT(A) by mere not filling the appeal in electronically and when the same was manually accepted by the office of the CIT(A).
2. Principle of Natural Justice - In the absence of notice of the kind and such reasonable opportunity, the order passed would violate the principles of natural justice. The appellant prays before Your Honour to delete the order passed by CIT(A) and pass the order as per the merit of the case. Against the order of the Ld AO passed u/s 143 of the Income Tax Act 1961, we made a manual/ paper application before Commissioner of Income Tax Appeal [CIT(A)] on the dt 27th April 2016. However the appeal has been dismissed on the ground that, the same was not filed electronically after opening of portal for online submission of application. Further to that appellant wants to submit that he has received notice u/s. 250 on 2nd December 2021 for submission of details electronically for proceeding before the CIT(A) against such notice appellant filed the detailed reply with the related documents on 16.”
3. The grievance of the Appellant in the present appeal is that the CIT(A) has dismissed the appeal preferred by the assessee against the Assessment Order, dated 21.03.2016, on the ground that the same was filed in physical form and therefore, is not maintainable.
The Ld. Authorised Representative for the Appellant appearing before us submitted that the appeal before CIT(A) was filed within limitation. However, since the appeal was not filed in Assessment Year: 2013-14 electronic form, the CIT(A) has dismissed the same without examining the merits. He submitted that the Appellant has a good case as in identical facts and circumstances similar issue has been decided in favour of the Appellant by the Tribunal vide order dated, 21.04.2021, passed in ITA No. 1914/Mu/2016 for the Assessment Year 2011-12. Per contra, the Ld. Departmental Representative contended that the appeal before CIT(A) was mandatorily required to be filed in electronic form. By way of Circular No. 20 of 2016, dated 26.05.2016, issued by the Central Board of Direct Taxes (CBDT), the last date for filing appeal electronically was extended to 15.06.2016. However, the Appellant failed to file the appeal in electronic form and therefore, the CIT(A) was justified in dismissing the same as not maintainable.
We have heard the rival submissions and perused the material on record. The Assessment Order was passed on 21.03.2016 and the same was served on the Appellant on 28.03.2016. The appeal before CIT(A) was, admittedly, filed in physical form within limitation on 27.04.2016. The Appellant did not file appeal electronically. On 02.12.2021, notice of hearing under Section 250 of the Act was issued to the Appellant and in response to the same the Appellant filed a detailed reply along with documents. However, the CIT(A) dismissed the appeal as not maintainable without any further notice to the Appellant , vide order dated 23.09.2022. The provisions relating to electronic filing of appeal before the CIT(A) were introduced with effect from 01.03.2016 by way of Income Tax (Third Amendment) Rules, 2016 whereby new Rule 45 of the Income Tax Rules, 1962 (hereinafter referred to as „the Rules‟)
ITA. No. 2979//Mum/2022 Assessment Year: 2013-14 substituted in place of the earlier Rule 45 and provided for furnishing of appeal before CIT(A) in Form No. 35 in electronic form. However, some technical issues glitches/difficulties were faced by the assessees in filing appeals electronically and therefore, the CBDT extended the period of limitation for filing the appeal electronically till 15.06.2016 vide Circular No. 20 of 2016. The aforesaid circular provided that in case an assessee had filed paper appeals but was not able to file such appeal electronically, such assessee could now file the appeal in electronic form till 15.06.2016 in accordance with Rule 45 of the Rules. In the present case, the Appellant did not avail of this opportunity. However, we note that the appeal in the physical form was accepted by the office of the CIT(A). Thereafter, no notice/communication was sent to the Appellant informing the Appellant about the defect in such appeal. In our view, an opportunity should have been granted to the Appellant to cure the defect by directing the Appellant to file appeal in electronic form before dismissing the appeal as not maintainable. Even if such appeal filed in electronic form was filed after limitation, the issue of delay in filing the appeal, if any, could have been examined by the CIT(A) keeping in view the facts and circumstances of the case. On the other hand, we note that the notice of hearing under Section 250 of the Act was issued to the Appellant and reply thereto was also filed electronically by the Appellant. Given the factual matrix of the present case and the fact that this is the first year in which the provisions for mandatory e-filing of appeal before CIT(A) were made applicable, we deem it appropriate and in the interest of justice, to remand the appeal back to the file of the CIT(A) for adjudication on merits as per law. Accordingly, Ground No. 2 Assessment Year: 2013-14 raised by the Appellant is allowed while Ground No. 1 is disposed of as being infructuous.