ATAUL U MEMON,MUMBAI vs. ITO 29(1)(1), MUMBAI

ORDER

PER N.K. PRADHAN, AM

filed by the assessee read as under:

1. The Ld. CIT(A) has erred in law and on facts in not providing any opportunity to cure the defect in order to file an appeal in electronic format and thereby not provided the appellant an opportunity to presen this case.

2. The Ld. CIT(A) failed to appreciate that the Assessee has filed the appeal as per the advice given by the practicing Chartered Accountant and therefore, non-filing of an appeal electronically was not due to the negligence on the part of the Assessee and therefore the Assessee should have been given an opportunity to correct inadvertent mistake of not filing an appeal electronically but filing it in physical form.

3. The Ld. CIT(A) have held that the appeal filed by the appellant is treated as non est. and thereby, dismissed the appeal without going into the merit of the case and thereby upheld the order of Assessing Officer even though the hard copy of the appeal papers were in his hand at the time of passing the order.

4. The Assessing Officer has erred in law and on facts in making the disallowance of commission of Rs.12,97,318 paid to various commission agents by the Assessee in the course of business of trading in chemical gases used in the pharma and industrial sectors.

5. The Assessing Officer failed to appreciate that most of the commission agents had confirmed having received the payment by crossed account payee cheques for the services rendered for either procuring chemical gases for the Assessee or for selling the chemical gases to various parties for and on behalf of the Assessee.

6. The Assessing Officer failed to appreciate that in the course of the business of trading in chemical gases, the Assessee had incurred expenditure of paying commission to various agents and therefore- the same ought to have allowed while computing business income of the Assessee.

Shri Ataul U. Menon 3 & 4059/Mum/2018 7. The order of assessing officer disallowing the commission of Rs.12,97,318 is bad in law and without jurisdiction.

3. Briefly stated, the facts are that the assessee had e-filed his return of income for the AY 2011-12 on 30.09.2011 declaring total income at Rs.12,70,903/-. In the assessment completed u/s 143(3) r.w.s. 147 on 07.03.2016, the AO determined the assessed income at Rs.41,09,680/-. The said assessment order was received by the assessee on 15.03.2016. Against the order of the AO the assessee filed appeal before the Ld. CIT(A) manually in paper form on 04.04.2016. The Ld. CIT(A) treated the appeal filed by the assessee as non est. by holding that :

“2. Notification No. S.O. 637(E) dated 1st March, 2016, was issued by the Central Board of Direct Taxes, New Delhi, amending Rule 45 of the Income Tax Rules, 1962. The Notification mandates compulsory e-filing of appeals before the Appellate Commissioner with effect from March 01, 2016, in respect of all persons who are required to furnish their return of income electronically.

Shri Ataul U. Menon 4 & 4059/Mum/2018 4. Before us, the Ld. counsel of the assessee submits that the appellant for the first time came to know through the order of the CIT(A) received on 17.04.2018 that the said appeal was required to be filed in electronic format and not in physical form. Also it is stated that the assessee was not given any opportunity to cure the defect by filing the appeal in electronic format. In this respect, the assessee has filed his affidavit sworn before the public notary on 29.05.2018. The assessee also asked Mr. Kamal Sangtani, Chartered Accountant, to file his affidavit stating the true facts, who had advised the assessee to file the appeal in physical form on 4th April, 2016. Accordingly, Mr. Kamal Sangtani, Chartered Accountant, has also filed his affidavit sworn before the public notary on 22.05.2018, which is enclosed with the appeal papers. Thereafter, the assessee appointed Mr. BDMV & Co., Chartered Accountants, having their office at 501, Umerji House Bldg No. 404, Telli Guly, Andheri (East), Above Bank of Baroda, Mumbai -400069 who advised the assessee to file an appeal with the Commissioner (Appeals) in electronic format. Thus, the assessee filed an appeal before the CIT(A) in electronic format on 15.05.2018. Therefore, it is stated that the CIT(A) may be directed to consider the appeal filed electronically on merits after condoning the delay as the assessee acted as per the advice of the person who is supposed to know the law and procedure prescribed under the Act. On the other hand, the Ld. DR supports the order passed by the Ld. CIT(A).

Shri Ataul U. Menon 5 & 4059/Mum/2018 5. We have heard the rival submissions and perused the relevant materials on record. In the instant case, the assessee received the assessment order dated 07.03.2016 passed by the AO on 15.03.2016. The assessee filed an appeal against the assessment order passed by the AO before the CIT(A) in physical form on 04.04.2016. The assessee, for the first time, came to know through the order of the CIT(A) received on 17.04.2018 that the appeal for the AY 2011-12 was required to be filed in electronic form and not in physical form. Having gone through the affidavit filed before the us and the fact that the assessee filed online appeal on 15.05.2018, we direct the Ld. CIT(A) to admit the appeal filed electronically and pass an order on merits, after condoning the delay. Facts being identical our decision for the AY 2011-12 applies mutatis mutandis to AY 2013-14.