HEMANT DUNGARSHI SHAH HUF,MUMBAI vs. ITO WD 27(1) (3), MUMBAI

We notice that the assessment order was passed on 30-03-2016 making certain additions. The assessee filed appeal before Learned CIT(A) manually on 29.04.2016. The said appeal was dismissed by the first appellate authority, vide his order dated 06-08-2018, on the ground that the appeal was not filed in electronic mode. Subsequently, the assessee filed appeal before Learned CIT(A) in electronic mode on 05.12.2018. Since there was delay of more than two years, the Learned CIT(A), vide his order dated 16.09.2021, dismissed the appeal filed in electronic mode also without condoning the delay. Hence the assessee has preferred the present appeal against the above said order dated 16.09.2021.

We further notice that the assessee had challenged the order dated 06-08-2018 passed by Learned CIT(A) against the appeal filed manually by filing appeal before the Tribunal. We also notice that the Tribunal, vide its order dated 14.01.2020 passed in disposed of the said appeal ex-parte passing following order:- “We have heard the submissions made by Ld Departmental Representative and have perused the orders of authorities below. The solitary reason for dismissing the appeal by first appellate authority was that the assessee has failed to file the appeal as per amended IT Rules. The appeal of the assessee has not been adjudicated by the CIT(A) on merits. Taking into consideration, entirety of facts, we deem it appropriate to restore this appeal to the file of CIT(A) for adjudication on merits after affording reasonable opportunity of hearing to the assessee, in accordance with law. The assessee is also directed to remove the defects in filing of the appeal before the first appellate authority. The impugned order is set aside and the appeal of the assessee is allowed for statistical purposes.”

In these factual aspects, we notice that the Tribunal has already restored the appeal filed by the assessee manually to the file of Learned CIT(A) for adjudicating the same on merits, meaning thereby, an appeal is already pending before Ld CIT(A). In the order passed by the Tribunal, the assessee has been directed that the defects in filing appeal before Learned CIT(A) should be removed. We noticed earlier that the defect pointed out was “filing of appeal manually”, which has since been removed by the assessee by filing appeal again before Learned CIT(A) in electronic mode. We also notice that the above said order of the Tribunal was not brought to the notice of Learned CIT(A) when he passed the order against the appeal filed in electronic mode. Hence the Learned CIT(A) has proceeded to dismiss the appeal in limine without condoning the delay.

We noticed that the impugned order dated 16-09-2021 has been passed by Learned CIT(A) without considering the order dated 14.01.2020 passed by the Tribunal. We also opined that the appeal filed in electronic mode is, in effect, removal of the defect in filing the appeal before Learned CIT(A) originally. In these factual aspects, it cannot be said that there was delay in filing appeal and hence the question of condoning the delay shall not arise. Accordingly, we are of the view that the impugned order of Learned CIT(A) cannot be sustained. In our view, the Learned CIT(A) should dispose of the appeal filed manually by clubbing the appeal filed in electronic mode which is only a case of removal of defect.

Accordingly, we set aside the order passed by Learned CIT(A) and restore all the issues to his file in order to enable him to dispose of the appeal filed manually before him, which was restored to his file by the Tribunal. The appeal filed in electronic mode is also restored by us to his file, since it is a case of removal of defect. On passing of the order by Learned CIT(A), one of the appeals should be dismissed as infructuous.

In the result, the appeal filed by the assessee is treated as allowed for statistical purposes.