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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SANDEEP SINGH KARHAIL & SHRI GAGAN GOYAL
The present appeal has been filed by the assessee challenging the impugned order dated 29/11/2021 passed under section 250 of the Income Tax Act, 1961 (‘the Act’) by the learned Commissioner of Income Tax, National Faceless Appeal Centre, Delhi [‘learned CIT(A)’], for the assessment year 2010– 11.
In this appeal, the assessee has raised the following grounds:
Abhishek Mahesh Palvia ITA no.83/Mum./2022
“The appellant has preferred an appeal against the order dated 29.11.2021 passed by National Faceless Appeal Centre (NFAC) u/s. 250 of the Income Tax Act 1961, in pursuance of appeal filed against assessment order dated 29.03.2016 passed u/s 143(3) r.w.s. 147 of the Income Tax Act, Following are the grounds of appeal without prejudice to one another:– I. The Learned Commissioner of Income Tax (Appeal) has dismissed appeal due to delay in filing of appeal without giving any opportunity to hear. Further Learned Commissioner of Income Tax (Appeal) failed to verify that appeal was filed within due date. II. On the facts and in the circumstances of the case, The learned Commissioner of Income Tax (Appeal) has erred in confirming the addition of Rs. 5,39,000/- as deemed income u/s. 68 of the Income tax Act 1961 without giving any opportunity and without verifying the facts of the case. III. The appellant craves to add, amend or alter the grounds of appeal at the time of or before the hearing of appeal.”
3. The only grievance of the assessee is against the dismissal of its appeal by the learned CIT(A) on the ground of delay.
During the hearing, at the outset, the learned Authorised Representative (‘learned AR’) submitted that the assessment order under section 143(3) of the Act was passed by the Assessing Officer on 29/03/2016, assessing the total income of the assessee at Rs. 9,77,760. Being aggrieved, the assessee initially physical appeal before the learned CIT(A) on 26/04/2016. Subsequently, the said appeal was uploaded as per the new e-filing procedure on 06/06/2016. Learned AR submitted that the physical appeal was filed by the assessee within the limitation period before the learned CIT(A) and the same was only uploaded late, therefore, there is no delay in filing the appeal before the learned CIT(A).
On the other hand, the learned Departmental Representative vehemently relied upon the impugned order.
Abhishek Mahesh Palvia ITA no.83/Mum./2022
Having considered the submissions of both parties and perused the material available on record, we find that the assessment order dated 29/03/2016, passed under section 143(3) of the Act was received by the assessee on 30/03/2016. Therefore, as per the provisions of section 249(2) of the Act, the assessee was required to file the appeal within a period of 30 days from the date of receipt of the assessment order. We find from the copy of the acknowledgement of filing of physical appeal before the learned CIT(A) that the assessee filed the said appeal on 26/04/2016 i.e., within 30 days from the date of receipt of the assessment order. However, we find that the assessee e- filed the same appeal before the learned CIT(A) on 06/06/2016 in view of the newly substituted provisions of Rule 45 of the Income Tax Rules, 1962, w.e.f. 01/03/2016 by IT (Third Amendment) Rules, 2016. Accordingly, the assessee claimed that there is no delay in filing the appeal and therefore no application seeking condonation of delay was filed before the learned CIT(A).
From the perusal of the impugned order, we find that the learned CIT(A) without deciding the appeal filed by the assessee on merits dismissed the same only on the basis that sufficient cause has not been shown by the assessee for condonation of delay in filing the appeal. It cannot be disputed that it is the case where the appeal before the learned CIT(A) was filed during the transition period of filing appeals from physical mode to e-filing mode and therefore all assessees cannot be presumed to be well-versed with the e-filing procedure. From the record, it is evident that the assessee was diligent and interested in pursuing the litigation and therefore filed the appeal, though physically, before the learned CIT(A) within the limitation period.
Abhishek Mahesh Palvia ITA no.83/Mum./2022 Subsequently, the said appeal was also uploaded on 06/06/2016, as per the new e-filing procedure which was introduced w.e.f. 01/03/2016. Thus, in view of the above, we are of the considered opinion that during the transition period a lenient view should have been taken. Therefore, we direct that the delay, if any, in uploading the appeal as per the new e-filing procedure be condoned. Since the learned CIT(A) has not rendered any finding on the merits of the issues raised by the assessee, therefore, we deem it appropriate to restore the appeal to the file of learned CIT(A) for the decision on merits after hearing the parties. Accordingly, the grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 03/01/2023