SHRI MANOJ KUMAR JAIN,JAIPUR vs. INCOME TAX OFFICER, WARD, TONK

In Ground No. 2, the assessee has challenged the action of the ld. CIT(A) in rejecting the appeal in limine for the reason that the assessee could not file the appeal online in accordance with Rule 45 of the Income Tax Rule. In this regard, ld. AR submitted that soon after receiving the assessment order, the assessee submitted a copy of the same to his Counsel to file the appeal before the ld CIT(A), however due to some mistake on the part of his Counsel, the appeal was filed in paper form and not online. It was submitted that the default is purely of technical nature and assessee may not be penalized for the mistake of his Counsel. In support, reliance was placed on the decision of Co-ordinate Bench in case of Gurinder Singh Dhillon vs. ITO (ITA No. 6595/Del/16) wherein the appeal was filed in paper form and the electronic filing of appeal got delayed, in the said facts, the matter was restored to the file of ld. CIT(A) with a direction to decide the appeal afresh on merits after condoning the delay. Further, reference was drawn to the Co-ordinate Bench decision in case of AIFTP vs. ITO (ITA No. 7134/Mum/2017) wherein it was held that since the appeal in paper form was already with ld. CIT(A), in that case the ld. CIT(A) ought not to have dismissed the appeal solely on the ground that assessee has not filed electronic before the Appellate Commissioner. 2 Sh. Manoj Kumar Jain, Tonk Vs. ITO, Tonk

Further, on merit, it was submitted by the ld AR that in respect of addition made by the AO u/s 40(a)(i) of Income Tax Act, the matter is squarely covered by the decision of Co-ordinate Benches in assessee’s own case in AY 2011-12, 2012-13 and 2013-14 and it was accordingly submitted that the technical breach in non-filing electronically may be condoned and the matter may be decided on merit.

Per contra, the ld. DR submitted that the ld. CIT(A) has given specific show cause to the assessee to file the appeal electronically however given the non-compliance on the part of the assessee, the ld. CIT(A) was left with no option but to dismiss appeal in limine.

We have heard the rival contentions and perused the material available on record. It is not disputed that the appeal has been filed manually in time. However, at the same time, the assessee has failed to comply with the specific show cause wherein he was directed to remove the defect and file appeal electronically. We note that the said compliance was required to be made by 05.09.2018 which the assessee failed and thereafter, on 06.09.2018, the ld. CIT(A) has passed the order dismissing the appeal in limine. Given that the manual appeal has been filed in time and the appeal has not been decided on merit, in the interest of justice and fair play, we hereby direct the assessee to file the appeal electronically before the ld CIT(A) within 1 month of date of receiving of this order and ld. CIT(A) shall thereafter decide the matter afresh after granting reasonable opportunity to the assessee.