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Before: Shri Inturi Rama Rao & Shri Duvvuru RL Reddy
आयकर अपीलीय अिधकरण, ‘डी’ �ायपीठ, चे�ई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI �ी इंट�री रामा राव, लेखा सद� एवं �ी धु�ु� आर.एल रे�ी, �ाियक सद� के सम� Before Shri Inturi Rama Rao, Accountant Member & Shri Duvvuru RL Reddy, Judicial Member आयकर अपील सं./I.T.A. No. 1823/Chny/2019 िनधा�रण वष�/Assessment Year: 2009-10 Shri P. Venkata Subba Rao, The Assistant Commissioner of 3-C, Nu-Tech Srinivas, 52, Vs. Income Tax, Gangadheeswarar Koil Street, Non Corporate Circle 18, Purasawakkam, Chennai 600 084. Chennai 600 034. [PAN:ABAPS3474R] (अपीलाथ�/Appellant) (��थ�/Respondent) अपीलाथ� की ओर से / Appellant by : Shri P.V. Dilip Kumar, C.A. ��थ� की ओर से/Respondent by : Ms. R. Anita, JCIT सुनवाई की तारीख/ Date of hearing : 30.09.2019 घोषणा की तारीख /Date of Pronouncement : 17.10.2019 आदेश /O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) 15, Chennai, dated 30.01.2019 relevant to the assessment year 2009-10. Besides challenging the issue on merits, the assessee has mainly challenged the ex-parte order passed by the ld. CIT(A).
The appeal filed by the assessee is delayed by 53 days, for which, the ld. Counsel for the assessee has filed a petition in support of an affidavit for condonation of the delay, to which; the ld. DR has not raised any serious
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objection. Consequently, since the assessee was prevented by sufficient cause, the delay of 53 days in filing of the appeal stands condoned and the appeal is admitted for adjudication.
Brief facts of the case are that the assessee is an individual and filed his return of income for the assessment year 2009-10 on 31.07.2009 declaring returned income of ₹. 23,75,501/-. The return filed by the assessee was processed under section 143(1) of the Income Tax Act, 1961 [“Act” in short] and thereafter, the case of the assessee was taken up for scrutiny. After considering the details filed against statutory notices, the assessment under section 143(3) of the Act was completed by assessing income of the assessee at ₹. 24,42,454/-. Subsequently, the case was reopened under section 147 of the Act as there was a cash deposit, which was escaped assessment and notice under section 148 of the Act was issued on 11.03.2015 and duly served on the assessee. After considering the submissions of the assessee, the peak balance in the bank statement was worked out at ₹.8,44,500/- and brought to tax. On appeal, since the assessee could not e-file the appeal, the ld. CIT(A) dismissed the appeal filed by the assessee without adjudicating the issue on merits.
On being aggrieved, the assessee is in appeal before the Tribunal. The ld. Counsel for the assessee has submitted that the ld. CIT(A) has
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erroneously dismissed the appeal summarily without going into the merits of the case and without appreciating the fact that the assessee has filed manual appeal within the time stipulated under the Act. It was further submission that the assessee has resigned from his job at Chennai and took a new employment at Vijayawada, Andhra Pradesh and the notices were received at the old address at Chennai. Since the assessee was not physically available to comply with the notice issued by the ld. CIT(A) for e- filing the appeal, the ld. Counsel for the assessee has prayed that suitable directions may be given to the ld. CIT(A) to adjudicate the issue on merits by giving an opportunity to the assessee.
Per contra, the ld. DR referred to the order of the ld. CIT(A) and submitted that the assessee has failed to file the appeal electronically, which is mandated by amendment to Rule 45 of the I.T. Rules, notified by the CBDT vide Notification No. S.O. 637(E) dated 01.03.2016, the manual appeal filed has been rightly treated by the ld. CIT(A) as non-est.
We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. It is an admitted fact that against the assessment order, the assessee filed a manual appeal on 25.04.2016, which is well within the time provided under the Act. Since the assessee did not comply with Rule 45 of the IT Rules, a show-cause
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dated 13.12.2018 was sent to the assessee to explain the cause for non- compliance with the aforesaid Rule. However, since the assessee has not complied with the notice issued by the ld. CIT(A) or any petition for condoning the delay in e-filing the appeal was filed, the appeal filed by the assessee was dismissed without adjudicating the issue on merits. By filing duly notarized affidavit, it was the submission of the assessee that the assessee has resigned from his job at Chennai and took a new employment at Vijayawada, Andhra Pradesh and thereby the assessee could not comply with the notices, which were issued and received at the old address at Chennai. Since the assessee was not physically available to comply with the notice issued by the ld. CIT(A) for e-filing the appeal. We find force in the submissions of the assessee. Otherwise also, the ld. CIT(A) should have adjudicated the grounds raised in the appeal on merits by considering the materials available on record, which was not done in this case.
6.1 The Mumbai Benches of this Tribunal in the case of All India Federation of Tax Practitioners v. ITO reported in [2018] 166 DTR 276 (Mumbai (Trib) as also the decision of the Delhi Benches of the Tribunal in the case of Shri Gurinder Singh Dhillon v. ITO in ITA No. 6595/Del/2016 dated 19.04.2017 had held that the delay was liable to be condoned. In this case, we find that the delay was on account of the venial breach and as the assessee had filed the manual appeal within the time and moreover, the
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assessee was not available at Chennai to comply with the notice issued by the ld. CIT(A) since he has moved to Vijayawada, Andhra Pradesh to take up new employment. Thus, respectfully following the principles laid down by the Hon’ble Supreme Court in the case of State of Punjab v. Shyamalal Murari & Others reported in AIR 1976 (SC) 1177, the delay in e-filing of the appeal is condoned and the issues in this appeal are restored to the file of the ld. CIT(A) for fresh adjudication on merits in accordance with law by affording an opportunity of being heard to the assessee.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced on the 17th October, 2019 in Chennai.
Sd/- Sd/- (INTURI RAMA RAO) (DUVVURU RL REDDY) ACCOUNTANT MEMBER JUDICIAL MEMBER Chennai, Dated, 17.10.2019 Vm/- आदेश की �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant, 2.��थ�/ Respondent, 3. आयकर आयु� (अपील)/CIT(A), 4. आयकर आयु�/CIT, 5. िवभागीय �ितिनिध/DR & 6. गाड� फाईल/GF.