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Income Tax Appellate Tribunal, DELHI BENCH ‘A’ NEW DLEHI
Before: SHRI SHAMIM YAHYA & SHRI N.K. CHOUDHRY
PER N.K. CHOUDHRY, J.M.
This appeal has been preferred by the Assessee against the order dated 27.11.2019, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-23, New Delhi (in short “Ld. Commissioner”), u/s. 250 of the Income-tax Act, 1961 (in short ‘the Act’) for the assessment year 2013-14.
The peculiar facts, relevant for adjudication of this appeal are that in the instant case, the assessee declared an income of Rs.5,14,200/- by filing a return of income on dated 31.07.2013. The assessment u/s. 143(3) of the Act was made by the Assessing
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Officer on dated 18.03.2016, determining the total income of assessee at Rs.96.76,410/- after making following additions:
(i) Disallowance of unexplained cash Deposits in ICICI Bank account Rs.33,62,000
(ii) Disallowance of unexplained Investment in M/s. Roseberry Developers Pvt. Ltd. Rs.24,00,000
(iii) Disallowance of unexplained Investment over & above the Unsecured loans raised. Rs.29,96,649
(iv) Addition on account of low Household withdrawals. Rs. 6,00,000 Rs.96,76,409
Being aggrieved by the assessment order, the assessee preferred first appeal before the ld. Commissioner. In the appeal proceedings, the ld. Commissioner noticed that in this case the assessee had filed two separate appeals against the same assessment order, impugned herein, i.e., one filed manually on 22.04.2016 and other was E-filed on 27.09.2017. The manual appeal was adjudicated by the then ld. Commissioner (Appeals)-19, New Delhi, inter alia dismissing the same as non-est vide order dated 27.10.2017 (Appeal No. 10059/16-17), against which the Assessee also preferred appeal before the ITAT in ITA No. 1474/Del/2019.
The Ld. Commissioner, therefore, asked the AR of the Assessee to explain, as to how the Assessee can pursue two parallel remedies against the same assessment order, i.e., one by filing manual appeal and other by way of E-filed appeal. Since no explanation was furnished by the assessee to the query of the ld.
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Commissioner, the ld. Commissioner dismissed the appeal as non- maintainable by holding as under:
“Since the appellant has filed appeal against the order of the CIT(A)-19, New Delhi dated 27.10.2017, therefore, the appellant is inherently proposing the manually filed appeal to be valid. Therefore, the E-filed appeal is certainly a parallel remedy, which is not permitted. Only one appeal can be filed against one assessment order. Therefore, this appeal is treated as non- maintainable and dismissed.”
Aggrieved by the impugned order, the assessee is in appeal before us. Though the notice for hearing was sent to the Assessee through Speed Post at the address given in Form No. 36, but the Assessee neither appeared nor filed any adjournment application. Therefore, in the constrained circumstances, we are deciding this appeal as ex-parte.
Heard the ld. DR and perused the material available on record. It clearly appears from the order passed by the ld. Commissioner that the conduct of the Assessee prima facie seems to aim at availing two parallel remedies against the same assessment order, which is not permissible under law. At one hand, the Assesseeis proposing its manually filed appeal to be valid by filing second appeal before the Tribunal against the order of CIT(A) dated 27.10.2017 passed in manually filed appeal, while on the other hand, the Assessee also proceeded with its E-filed appeal before the ld. Commissioner, which stands dismissed as non- maintainable vide impugned order. Since the Assesseeeither failed before the ld. Commissioner and us as well, to substantive its claim for prosecuting the e-filed appeal, which is subsequent to the
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appeal filed in physical form, which has already stands dismissed by the Ld. Commissioner and against the dismissal of the same, appeal filed by the Assessee in ITA no 1474/Del/2019 has also already been decided by the Hon’ble Coordinate Bench of the Tribunal. For ready reference, concluding part of the order is reproduced herein below:
We have carefully perused the order of the First Appellate Authority. We find that the FAA has dismissed the appeal in limine because the appeal was not filed electronically
We are of the considered view that CIT(A) ought to have given opportunity to the assessee to file the appeal in electronic form and ought to have decided the appeal on merits of the case.
Therefore, in the interest of justice and fair play we restore the appeal to the files of the CIT(A). The assessee is directed to file the appeal afresh in electronic form and the CIT(A) is directed to decide the appeal afresh after giving a reasonable and sufficient opportunity to the assessee.
In the result, the appeal of the assessee is allowed for statistical purpose.
5.1 In view of the order of the Hon’ble tribunal, as the Assessee is directed to file the appeal afresh in electronic form and the CIT(A) is directed to decide the appeal afresh after giving a reasonable and sufficient opportunity to the Assessee, the present appeal of the assessee is liable to be dismissed.
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In the result, the appeal filed by the assessee stands dismissed.
Order pronounced in the open court on 18/10/2022. Sd/- Sd/- (SHAMIM YAHYA) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER
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