SHRI RAVI PRAKASH AGARWAL,JAIPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, JHUNJHUNU

At the outset, it is noted with the present appeal is filed with the delay of 88 days. The assessee has moved an application for condonation of delay in filing the appeal. In its application, the assessee has submitted as under:- “1. The appellant was earlier residing at his native place churu. But in the year he shifted alongwith his family to Delhi and he is presently residing in Delhi at E-4/20, Near Post Office, Rohini Sector 7, North West, Delhi Copy of legal documentary evidence i.e. Aadhar card in support of his residential address in Delhi is enclosed herewith. 2. The appellate order dated 28.03.2019 was dispatched by post on 28.03.2019 at his old native place residential address, Churu. Where no 2 Sh. Ravi Prakash Agarwal, Jaipur Vs. ACIT, Cirlce-01, Jhunjhunu family member or other responsible person is residing. The order was served on some unauthorized person and he dropped the sealed envelope in the closed house of the appellant. The appellant visited his native place Churu on 20th July, 2019 and 3. on that date he came to know about the appellate order. It is presumed that the postal authority took a time of about 4 days after its dispatch by the I.T. department on 28.03.2019 and accordingly the date of service of the order works out to 01.04.2019. Based on the said date of service the due date for filing the appeal was 30th May, 2019. Thus there is a delay of 88 days in filing the appeal. 4. The appellant humbly pray that the above said delay of 88 days in filing the appeal is not a conscious and/or deliberate one and the appellant was prevented by sufficient cause in filing the same within the statutory time limit provided in the I.T. Act, 1961. 5. An affidavit of the appellant in support of the above submitted facts is enclosed herewith.”

Per contra, the ld. DR has objected in condoning the delay in filing the appeal. It was submitted that the order has been dispatched by the office of ld CIT(A) at the given address by the assessee and where there is change of address, it is incumbent on part of the assessee to inform the department about the same and in absence of the same, the assessee cannot plead delay in receipt of the order passed by the ld CIT(A).

Heard both the parties and purused the records. There is no dispute that the order passed by the ld CIT(A) has been received by the assessee. The plea of the assessee is that due to change of address, there is delay in receipt of the said order and consequent delay in filing the present appeal. Hence, considering the contents of the affidavit which is placed on record, the delay in filing the present appeal is condoned and the appeal is admitted for adjudication. 3 Sh. Ravi Prakash Agarwal, Jaipur Vs. ACIT, Cirlce-01, Jhunjhunu 5. Briefly stated, the facts of the case are that the assessment in this case was completed and order passed u/s 143(3) read with 147 dated 18.03.2016. During the course of assessment proceedings, the AO observed that the assessee has claimed speculative loss of Rs. 46,73,054/- which cannot be adjusted or set off against business income. Hence, loss claimed by the assessee was disallowed. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A).

The ld. CIT(A) observed that assessee has filed manual appeal on 24.10.2016 and there was delay in filing the e-appeal by 14 months and given that the assessee has not been able to establish his bonafide for late filing of appeal by 14 months, the appeal of the assessee was dismissed ab-initio. Against the said findings, the assessee is in appeal before us.

During the course of hearing, our reference was drawn to the proceedings before the ld. CIT(A) and it was submitted by the ld AR that the matter was initially heard before ld. CIT(A)-III, Jaipur wherein the matter was partially heard and thereafter, during the course of hearing on 21.03.2018, the assessee was asked to e-file the appeal which was subsequently e-filed on 14.04.2018. It was further submitted that the assessee had duly filed the appeal within one month of the Hon’ble Rajasthan High Court decision wherein the Hon’ble Rajasthan High Court was pleased to dispose off the assessee’s writ stating that since alternative remedy is available to the assessee, the assessee shall file appeal before the ld CIT(A) within one month of date of the order. It was accordingly submitted that the appeal has been duly filed manually on 24.10.2016 in compliance to the order of the Hon’ble Rajasthan High Court and thereafter, filed electronically on 14.04.2018 and the assessee has thus complied with the directions of the ld. CIT (A)-III, Jaipur as well. It was further submitted that delay in filing of appeal electronically at that point of time is due to technical error in the system and is only a procedural default and the same may be condoned and in the interest of justice, the assessee 4 Sh. Ravi Prakash Agarwal, Jaipur Vs. ACIT, Cirlce-01, Jhunjhunu may be provided an opportunity to represent his case on merits and the matter may be restored to the file of ld. CIT(A) to examine the same on merits.

Per contra, the ld. DR again drawn our reference to the findings of the ld. CIT(A) and submitted that the case of the assessee that e-filing of the appeal could not happen due to technical error in the system cannot be accepted as there is a time gap of 14 months between manual filing of appeal on 24.10.2016 and e-filing on 14.04.2018 given that technical error, even if accepted, cannot continue for such a long period. It was further submitted that the contention of the assessee that no defect memo was issued cannot be accepted as the CBDT has widely notified procedure of e-filing of appeal on or after 01.03.2016 and such notification was widely published and circulated and there was thus, no need to issue a separate defect notice in individual cases. It was accordingly submitted that there is no infirmity in the order of ld. CIT(A) and the same should be confirmed.

We have heard the rival submissions and perused the material available on record. It is not in dispute that the assessee has filed the appeal within a period of one month as per the order of the Hon’ble Rajasthan High Court disposing off the assessee’s writ. Thus, the appeal of the assessee is in compliance with the order of the Hon’ble Rajasthan High Court and even the ld CIT(A) has returned a similar finding and the same is not being disputed before us.

Now, coming to e-filing of the appeal by the assessee. In this regard, we find that the jurisdiction over the assessee’s matter was initially with the ld CIT(A)-III, Jaipur and thereafter, vide notification no. 4 dated 25.09.2018 issued by the Pr. CCIT, Rajasthan, the jurisdiction was transferred to ld CIT(A)- IV who has passed the impugned order. Further, it is noted that the matter was partially heard from time to time by the ld CIT(A)-III, Jaipur before being transferred and during the course of hearing scheduled on 21.03.2018 before 5 Sh. Ravi Prakash Agarwal, Jaipur Vs. ACIT, Cirlce-01, Jhunjhunu the ld CIT(A)-III, the assessee was instructed to e-file the appeal. Therefore, we find that the assessee’s appeal though in compliance with the order of the Hon’ble Rajasthan High Court, the ld CIT(A)-III had noticed the defect in assessee’s appeal due to lack of e-filing in compliance with CBDT’s instructions. The assessee has thereafter removed the defect and filed the e-appeal on 14.04.2018. Given that the assessee has e-filed the appeal within a reasonable period of less than one month of being instructed by the ld CIT(A) and not a period of 14 months as contended by the ld DR, the delay so happened, being a technical breach, is hereby condoned and the matter is restored to the file of the ld CIT(A)-IV to examine the same on merits after providing reasonable opportunity to the assessee. The above directions would also be in consonance with the order of the Hon’ble Rajasthan High Court where the assessee has been instructed to avail the appellate remedy before the ld CIT(A). The assessee is also instructed to communicate his new address to the ld CIT(A) and attend to the proceedings before the ld CIT(A) as so instructed by the latter.