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Income Tax Appellate Tribunal, JAIPUR BENCHES (SMC
Before: SHRI RAMESH C SHARMAvk;dj vihy la-@ITA No. 323 & 324/JP/2019
ORDER PER: R.C. SHARMA, A.M. These are the appeals filed by the assessee against the separate orders of ld.CIT(A)-3, Jaipur dated 11/01/2019 and 10/01/2019 for the A.Ys. 2009-10 and 2010-11 respectively in the matter of order passed U/s 201(1)/201(1A) of the Income Tax Act, 1961 (in short the Act).
In these appeals, the assessee has filed adjournment petition but nobody was present in the court to prosecute the adjournment petition,
2 ITA 323 & 324/JP/2019 Bank of India Vs ITO (TDS)-2 accordingly, the Bench decided the matter after hearing the ld DR and considering the matter placed on record.
In these appeals, I found that the ld. CIT(A) has dismissed the appeal by passing ex parte order after observing that the assessee has not e-filed its appeals. The precise observation of the ld. CIT(A) in the appeal for A.Y. 2009-10 was as under:
“On verification of record, it is found that you have not filed e-appeal. The I.T. Rule 45(1) amended from 01/03/2016 but you have not filed the e-appeal. Therefore, you are requested to file an e-appeal, otherwise your appeal filed manual will be treated as unrest.”
It was argued by the ld DR that the assessee has not e-filed its appeal nor same was manually filed within extended period of time, therefore, the ld. CIT(A) was justified in dismissing the appeal.
I have gone through the orders of the authorities below and found that the ld. CIT(A) has dismissed the appeal on the plea that the same was not e-filed. However, thereafter, the assessee has manually filed the appeal. The ITAT Mumbai Bench in the case of Ashraf Aziz Kasmani Vs ITO (2018) 92 taxmann.com 283 (Mum-Trib) has held as under:
“11. Upon careful consideration, I find that in the above CBDT Circular, admittedly there is no discussion about the date of assessment order, with respect to which the said Circular is applicable. A construction that the said Circular is not applicable to assessment orders passed prior to 01.3.2016, cannot be said to be totally
3 ITA 323 & 324/JP/2019 Bank of India Vs ITO (TDS)-2 unsustainable. The Hon'ble Apex Court in the case of CIT v. Vegetable Products Ltd. [1973] 88 ITR 192 has expounded that if two constructions are possible, one in favour of the assessee should be applied. On the facts of the present case, and on the touch stone of the above said Hon'ble Apex Court decision, I am of the considered opinion that the assessee's plea that the appeal filed manually for assessment order passed prior to 01.03.2016, should be admitted by the ld. Commissioner of Income Tax (Appeals), is cogent. More so, when the ld. Commissioner of Income Tax (Appeals) in his earlier paragraph has accepted that the appeal is well within time. Accordingly I direct the ld. Commissioner of Income Tax (Appeals) to admit the aforesaid appeal of the assessee and pass an order on the merits of the case. Needless to add, the assessee should be granted adequate opportunity of being heard.” In view of the above facts and circumstances and in the substantial interest of justice, I restore the matter back to the file of the ld. CIT(A) for deciding the appeals on merits after providing due and effective opportunity of being heard to the assessee. The assessee is directed to appear before the ld. CIT(A) within a period of 60 days from the date of receipt of this order.
In the result, both the appeals of the assessee are allowed for statistical purposes only. Order pronounced in the open court on 02nd May, 2019.