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Income Tax Appellate Tribunal, DELHI BENCH ‘G’, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI B.R.R. KUMAR
This appeal has been filed by the Assessee against the order dated 31.1.2017 of the Ld. CIT(A)-9, New Delhi relating to assessment year 2013- 14 on the following grounds:-
“1. That under the facts and circumstances of the case Ld. CIT(A) has erred in dismissing the appeal on the ground that the same was to be mandatorily filed 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 31.01.2017. Ld. CIT (A) ought to have tagged the electronic appeal with manual appeal which was filed within the prescribed time.
2. That under the facts and circumstances of the case instead of dismissing the electronic appeal Ld. CIT(A) should have decided the same on merits ignoring the technical aspect 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 ("the Act") to dismiss the appeal in- limne.
3. That under the facts and circumstances of the case Ld. CIT(A) ought to have deleted the addition regarding employees contribution of PF and ESI to the extent of Rs. 2,60,628/- and Rs. 56,541/- respectively as the payment was made within the prescribed time of filling the return under section 139(1) of the Act. The impugned addition is liable to be deleted.
That under the facts and circumstances of the case Ld. CIT(A) ought to have deleted addition of Rs. 5,74,000/- added on account of sale of cars by treating the sale consideration as unexplained cash deposit u/s 68 of the Act. The impugned addition is liable to be deleted.
The amount Rs. 5,74,000/- represented sale proceeds of old cars and could not be treated as unexplained credits under section 68 of the Act particularly in the light of the fact that selling price of the vehicles have not been doubted and the impact was only on quantum of admissibility of quantum of depreciation. Sale price of fixed assets (old cars) can neither be treated as unexplained credit nor can be assessed as income from other sources liable to be taxed under section 115BBE of the Act. The tax treatment of the impugned addition under section 115BE of the Act is liable to be deleted in law.
The AO has erred in initiating penalty proceedings under section 271(1)(c) of the Act without recording adequate satisfaction and without concluding that the Assessee has not acted in good-faith and has not exercised due-diligence.
That on the facts and circumstances of the case and in law, the AO has erred, in charging interest under sections 234B, 234C and 2340 of the Act
The appellant prays for leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing of the appeal.
Each of the above grounds is independent and without prejudice to the other grounds of appeal preferred by the appellant.
Facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.
In this case, Notice of hearing to the assessee was sent by the Registered AD post, in spite of the same, assessee, nor its authorized representative appeared to prosecute the matter in dispute, nor filed any application for adjournment. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, we are of the view that no useful purpose would be served to issue notice again and again to the assessee, therefore, we are deciding the present appeal exparte qua assessee, after hearing the Ld. DR and perusing the records.
4. During the hearing, it was noted from the grounds of appeal that during the First Appellate proceedings 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. It has been mentioned in the grounds of appeal 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 31.1.2017 and Ld. CIT(A) ought to have tagged the electronic appeal with manual appeal which was filed within the prescribed time. It was further mentioned in the grounds of appeal 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.
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 31.1.2017 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). 6. In the result, the Appeal filed by the Assessee stands allowed for statistical purpose. Order pronounced on 03/07/2019.