PRAKASH M.JAIN,MUMBAI vs. INCOME TAX OFFICER 19(2)(5), MUMBAI

O R D E R

PER RAM LAL NEGI, JM

a. That the original appeal manually filed in the office of the CIT (Appeals) 30 on 18.04.2016 was in limine. b. That the appeal has filed electronically on 14.07.2016 is delayed by one month, which was due to the reasonable cause. The Hon’ble CIT (Appeal) ought to have condon the delay in filing the appeal. Ground No. 2 The learned C.I.T. (Appeal) erred in not following the decision of the Hon’ble Delhi ITAT in the case of Jagbir Singh Sharma vs. A.C.I.T. decided on 05.06.2017 which was brought to his notice. Without prejudice to above ground of appeal

. Ground No.

3. The learned CIT Appeal erred in not adjudicating the re- opening of assessment 147 of the Income Tax Act. Ground No.

4. Addition of Rs. 1983648/- on account of suspicious purchases. In the facts and circumstances of the case and in law the learned CIT Appeal erred in not adjudicating the addition suspicious purchases of Rs. 1983648 without giving an opportunity to the appellant of being heard.”

3. In the present case, the assessee filed appeal against the assessment order passed by the AO manually in the office of CIT (A)-30, Mumbai on 18.04.2016, which was received on transfer in the office of CIT (A)-16, Mumbai on 29.11.2017. Accordingly, vide letter dated 18.12.2017 the assessee was given an opportunity to explain as to why manually filed appeal should not be treated as invalid in the light of the Notification No. SO 637 (E) dated March 1, 2016 issued by the CBDT mandating electronic filing of appeals, before the Appellate Commissioner, w.e.f. 01.03.2016. The assessee submitted that it has electronically filed the appeal on 14.07.2016. The Ld. CIT (A) dismissed the appeal filed by the assessee on the ground that the present appeal filed by the assessee does not meet the requirement laid down in the aforesaid notification.

6. We have carefully perused the material on record. We notice that the assessee had filed the appeal against the similar order passed by the Ld. CIT (A) for the AY 2010-11 and the coordinate Bench restored the appeal to the Ld. CIT (A) after condoning the delay in filing appeal electronically in terms of Notification aforesaid, for deciding the appeal afresh on merits, after hearing the assessee. The operative part of the order passed by the coordinate Bench in assessee’s case AY 2010-11 reads as under:- “4. We have heard the argument advanced by the Ld. Representative of the parties and perused the record. We noticed that the CIT (A) did not decide the case on merits. The assessee filed the appeal manually before the CIT (A) 30 on 18.04.2016 which was well-in-time. However, the assessee has filed the appeal electronically on 14.07.2016 which was delayed by one month. The CIT (A) has dismissed the appeal on account of filing the appeal delayed electronically by one month i.e. on 14.07.2016. The CIT (A) did not condone the delay. On appraisal of the record, we noticed that in fact the assessee has filed the appeal manually on 18.04.2016 which was well in time. The delay of filing the appeal electronically is not so much delay specifically in the said circumstances when the case is liable to be decided on merits. The assessee has challenged the addition of Rs. 7,57,199/- on account suspicious purchase. The matter of controversy is required to be adjudicate on merits, therefore, in the interest of justice we condone the delay and restored the matter before the CIT (A) to decide the matter afresh by giving an opportunity of being heard to the assessee in accordance with law. Accordingly, the appeal filed by the assessee is hereby allowed for statistical purpose. In the result, the appeal filed by the assessee is hereby ordered to be allowed for statistical purposes.”

7. Since, the coordinate Bench has dealt with the identical issues in assessee’s own case for the AY 2010-11 (supra) and restored the appeal to the Ld. CIT (A) for deciding the same on merits and since the issues involved in the present case are identical, we respectfully following the decision of the coordinate Bench, condone the delay in filing appeal electronically and restored the file to the Ld. CIT (A) for deciding the appeal afresh on merits after affording a reasonable opportunity of being heard to the assessee. However, we direct the assessee to appear before the Ld. CIT (A) as and when called and not to seek adjournments on frivolous grounds. In the result, appeal filed by the assessee for assessment year 2011-2012 is allowed for statistical purposes. Order pronounced in the open court on 24th July, 2019.