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Income Tax Appellate Tribunal, DELHI “FRIDAY-C” BENCH, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI L.P. SAHU
The assessee has filed the present appeal against the impugned order dated 31.8.2017 passed by the Ld. CIT(A), New Delhi relating to assessment year 2013-14 on the following grounds: i) The action of the Ld. CIT(A) for dismissing the appeal is unjust, arbitrary and illegal as original paper appeal has been filed due within time as prescribed under the Act alongwith all the required compliances and the same has been taken on note by the CIT(A).
(ii) The Ld. CIT(A) grossly failed to realize that the assessee has filed online appeal at a subsequent date also in order to comply with the CBDT Notification No. SO 637(E)(No. 11/2016) (F.No.
149/150/2015-TPL}, 2016. iii) The appeal filed with CIT(A) should be restored. iv) The appellant craves for leave to amend, alter or add any other grounds of appeal.
The 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.
At the time of hearing, Ld. counsel for the assessee has submitted that AO has completed the assessment u/s. 143(3) of the Income Tax Act, 1961 (in short “Act”) on 28.3.2016 at a total income of Rs. 5,80,65,250/- after making the disallowance of expenses claimed u/s. 57(iii) of the Act. It was further submitted that aggrieved with the assessment order, assessee has filed the appeal manually before the Ld. CIT(A) on 19.4.2016 which is well within time prescribed under the Act, but due to some technical error as well as due to oversight, the assessee could not file the e-appeal with the Ld. CIT(A) within extended time, as per CBDT Notification No. SO 637(E)(No. 11/2016) (F.No. 149/150/2015), but filed the same on 08.10.2016 with the request to condone the delay in filing the e-appeal.
But the Ld. CIT(A) has not considered the manual appeal which was filed within time and has also not condoned the delay in filing the E-appeal on 08.10.2016 and passed the order by treating the appeal as nonest and dismissed in liminie vide impugned order dated 21.8.2017. Aggrieved with the same, assessee filed the appeal before the Tribunal on 31.10.2017 which is pending for disposal. The assessee’s counsel stated that the estimation made by the Revenue Authorities are totally wrong and incorrect. The Income Tax Officer has started the recovery proceedings against the assessee due to dismissal of appeal by the Ld. CIT(A). He further submitted that Ld. CIT(A) has passed the impugned order by dismissing the appeal in liminni, which is contrary to Section 250(6) of the Act and hence, he submitted that there is no delay in filing the manual appeal on 19.4.2016, but due to some technical error as well as due to oversight of the assessee, he could not file the e-appeal before the Ld. CIT(A) within the extended period as per above CBDT Notification. It was further submitted that there is no deliberate intention of the assessee in late filing the e- appeal. He further submitted that these are the sufficient cause for condoning the delay in dispute, which occurred before the Ld. CIT(A) and therefore, he requested that the delay, if any, before the Ld. CIT(A) in filing the e-appeal may be condoned by setting aside the issues in dispute to the file of the Ld. CIT(A) to decide the same on merits, as per law. However, at the time of hearing, both the parties agreed that Ld. CIT(A) has dismissed the appeal of the assessee in limini, therefore, the main appeal may be decided today itself, as per law.
Ld. DR have not raised any objection on the request of the assessee’s counsel for setting aside the issue in dispute to the Ld. CIT(A) to decide the same as per law.
We have heard both the parties and perused the records available with us, especially the order of the Ld. CIT(A), who has dismissed the appeal in liminie only on the ground that since assessee was mandatory required to file e-appeal within the extended period i.e. upto 15.06.2016, but the same was not filed in time and the appeal filed by the assessee was treated as nonest and dismissed limine. In our considered view, the assessee has the right to file the appeal and the Ld. CIT(A) is duty bound to decide the same afresh, as per law, after giving adequate opportunity of being heard to the assessee. However, in the present case, it is due to fact that assessee filed the appeal manually before the Ld. CIT(A) on 19.4.2016 which is well within prescribed time period, under the law and he has filed the e-appeal on 08.10.2016 with the request to condone the delay in filing the e-appeal, but the same has not been appreciated by the Ld. CIT(A) and he dismissed the appeal in limine, which is contrary to law and facts of the case. 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”.
In the background of the aforesaid discussions and respectfully following the precedent and in the interest of justice, we condone the delay in dispute and remit back the issues in dispute to the files of the Ld. Commissioner of Income Tax (Appeals) with the directions to decide the same afresh, under the law, after giving adequate opportunity of being heard to the assessee and pass a speaking order on the merits of the case.
However, the assessee is at liberty to file the documents/evidences before the Ld. CIT(A) to substantiate his case and did not take any unnecessary adjournment.
In the result, the Assessee’s Appeal is allowed for statistical purposes.
Order pronounced on 15-03-2019.