M/S.BHARAT ENTERPRISES PRIVATE LIMITED,MUMBAI vs. INCOME TAX OFFICER 9(2)(1), MUMBAI

आयकर अपीलीय अधिकरण “B” न्यायपीठ म ुंबई में। IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI श्री महावीर स िंह, न्याययक दस्य एविं श्री राजेश कुमार लेखा दस्य के मक्ष। BEFORE SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM Aayakr ApIla saM./ (inaQa-arNa baYa- / Assessment Year 2012-13) Bharat Enterprises Private The Income Tax Officer Limited Ward 9(2)(1), Aayakr Bhavan, 24, Mohid Tower, 3 rd Floor, Vs. Mumbai-400 020 Lokhandwala Lane, Andheri (W), Mumbai-400 053 .. (p`%yaqaaI- / Respondent) (ApIlaaqaI- / Appellant) स्थायी लेखा िं./PAN No. AACCB6926B अपीलाथी की ओर े / Appellant by : Shri Haridas Bhat, AR प्रत्यथी की ओर े / Respondent by : Shri Chaudhary Arun Kumar Singh, DR ुनवाई की तारीख / Date of hearing: 13.08.2019 घोषणा की तारीख / Date of pronouncement : 13.08.2019 AadoSa / O R D E R महावीर स ुंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM: This appeal of assessee is arising out of the order of the Commissioner of Income Tax (Appeals)-16, Mumbai in appeal No. CIT(A)- 16/ITO-9(2)(1)/IT-61/2016-17 dated 28.03.2018. The Assessment was framed by the Income Tax Officer, Ward-9(2)(1), Mumbai (in short ITO/ AO) for the A.Y. 2012-13 vide dated 29.02.2016, under section 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’).

2 2. At the outset, it is noticed that the assessee has raised the issue as regard to violation of natural justice dismissing the appeal on the ground that the assessee has not filed the appeal electronically i.e. e-filing before CIT(A). For this assessee has raised the following ground: - “1. On the facts and circumstances of the case, and in law, the CIT(A) erred in not adjudicating the case on its merits which is against the natural law and justice and in bad in law.

2. On the facts and circumstances of the case and in law the AO failed to appreciate that: a. The CIT(A) dismissed the appeal on the grounds that the assessee has not e-filed the appeal. b. The CIT(A) passed the order without giving any opportunity to the assessee to present its case. c. The CIT(A) acted against the natural law of justice by not adjudicating the case on its merits.

3. The appellant therefore prays that the case may be sent back to the concerned CIT(A) for appropriate adjudication on the merits of the case.”

3 3. At the outset, the learned Counsel for the assessee stated that this issue is squarely covered by the assessee, wherein the Tribunal has remitted the matter back to the file of the CIT(A) for allowing opportunity to the assessee to file its appeal by way of e-filing and then decide the appeal on merits. The Tribunal has consistently has remitted the matter back to the file of the CIT(A) the Tribunal in the case of Astrex Reinforced Ltd. vs. ITO in for AY 2010-11 vide order dated 16.05.2018, wherein exactly identical issue has been decided by the Tribunal and the same read as under: - “6. We have heard both the parties and perused the materials available on record. It is an undisputed fact that the CBDT has mandated filing of appeal in electronic form after a certain date by issuing notification vide Notification No.SO 637(E) [No.11/2016 (F. No.149/150/2015-TPL)] dated 01.03.16 as per which the assessee is required to file form No.35 electronically. It is also an admitted fact that the CBDT has extended such due date of filing of appeal in electronic mode up to 15.06.16 considering the hardships/technical glitches in filing the appeal electronically. Admittedly, the assessee has filed its appeal in paper form on 29.04.16. The assessee claims that it is unaware of the notification issued by the CBDT for filing appeals in electronic format, therefore, it has filed its appeal in manual form on 29.04.16. The assessee further claims that during transition period the provisions of notification should not be applied strictly.

4 7. Having heard both the sides, we find merits in the arguments of the assessee for the reason that during transition period the provisions of any notification or circulars mandating the assessees to follow certain instructions should not be strictly applied. We further noticed that the assessee has filed its appeal in manual form and such appeal has been filed within the prescribed time under the Act. Therefore, we are of the considered view that merely because the assessee has not filed the appeal in electronic form, the assessee’s appeal cannot be dismissed on technical grounds that too during transition period. We, further, noticed that the Hon’ble Supreme Court and various High Courts have already categorically stated that when technicalities and substantial justice is pitted against each other, the substantial justice deserves to be prevailed over technicalities. Therefore, we are of the considered view that the Ld. CIT(A) was erred in dismissing the appeal filed by the assessee as not maintainable, hence, we set aside the issue to the file of the Ld. CIT(A) and direct him to admit the appeal filed by the assessee by directing the assessee to file its appeal in electronic format and also to condone delay in filing such appeal in electronic format. We also direct the Ld. CIT(A) to decide the issues on merits.”