M/S TOFFEE AGRICULTURAL FARMS PVT. LTD.,NEW DELHI vs. ITO, NEW DELHI

This appeal has been filed by the Assessee against the order dated 27.2.2017 of the Ld. CIT(A)-9, New Delhi relating to assessment year 2013-14 on the following grounds:-

SO637(E) No. 11/2016 dated 01/03/2016 for e-filing of appeals.

1.1. The learned Commissioner of Income Tax (Appeals) has further erred both on facts and in law in not considering the fact that the assessee company has made due attempts to file the said appeal online but remained unsuccessful due to some technical glitches which was also accepted by CBDT in its subsequent circular dated 26.5.2016.

1.2. The learned Commissioner of Income Tax (Appeals) has further erred both on facts and in law in not accepting the fact that the said appeal was required to be filed within 30 days of receipt of assessment order. The said time limit of filing of appeal was going to expire on 26th of April, 2016 and on the said date appellant was left with no choice but to file a paper appeal.

1.3. The learned Commissioner of Income Tax (Appeals) has further erred both on facts and in law in not accepting the bonafide belief of assessee company that once the appeal is admitted in paper form, the assessee company was not required to file the said appeal electronically.

1.4. The learned Commissioner of Income Tax (Appeals) has further erred both on facts and in law in not curing the defects identified in filing form 35 on the principles of natural justice.

The Appellant Company craves leave to add, alter or amend the ground of appeal at a later stage.

5. Ld. DR relied upon the orders of the authorities below and stated that Ld. CIT(A) has dismissed the appeal of the assessee in accordance with CBDT guidelines, which does not need any interference.

6. We have heard the Ld. DR and perused the records especially the impugned order as well as the grounds of appeal. We find that Ld. CIT(A) has observed that assessee was required to file the appeal only in electronic form latest by 15.6.2016. However, the present appeal / copy of the appeal filed manually in the office of the Ld. CIT(A) was a paper appeal and thus does not meet the requirement of the extant rules, hence, he treated the appeal as non-est and the appeal was dismissed in limine. However, we have noted from the grounds of appeal that Assessee’s appeal was treated as non-est and the same was dismissed in limine by the Ld. CIT(A) by passing a exparte order. We find considerable cogency in the contention of the assessee that Ld. CIT(A) has erred in dismissing the appeal on the ground that the same was to be mandatorily on-line before 15th June, 2016 particularly when it was brought to his notice that the electronic appeal though filed belatedly has been filed on 18.2.2017 and Ld. CIT(A) ought to have tagged the electronic appeal with manual appeal which was filed within the prescribed time. We further find that Ld. CIT(A) instead of dismissing the electronic appeal, should have decided the same on merits ignoring the technical aspects of not having filed the appeal electronically within the time prescribed as he does not have the power under section 250(6) of the Income Tax Act, 1961 to dismiss the appeal in limine. In view of above, it is noted that Ld. CIT(A) has not discussed in detail the facts and circumstance of the case and also did not deal the issue on merit and passed a non-speaking exparte order, which in our opinion, is not in accordance with the principles of natural justice and it is an erroneous approach. After reading Section 250(6) of the Act, we are also of the considered view that Assessee’s case should be decided on merits, which the Ld. CIT(A) has not done. However, it is a settled law that even an administrative order has to be speaking one. In this regard, we draw support from Hon’ble Apex Court in the case M/s Sahara India (Farms) Vs.

CIT & Anr. in [2008] 300 ITR 403 wherein it has been held that even “an administrative order has to be consistent with the rules of natural justice”. 6.1 In the background of the aforesaid discussions and in the interest of justice, we remit back the issues in dispute to the file of the Ld. Commissioner of Income Tax (Appeals) for hearing with the directions to consider each and every aspects of the issues involved in the Appeal and decide the same afresh, after considering all the evidences/documents and pass a speaking order on the merits of the case and give adequate opportunity of being heard to the assessee. The Assessee is also directed to file all the necessary evidences / documents before the Ld. CIT(A) to substantiate its case and did not take any unnecessary adjournment in the proceedings before the Ld. CIT(A).

(B.R.R. KUMAR) [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:04/07/2019 *SR BHATNAGAR*