M/S.BHAVESHWAR PROPERTIES PRIVATE LIMITED,MUMBAI vs. INCOME TAX OFFICER WARD 14(1)(3), MUMBAI

The present appeal has been preferred by the assessee against the order dated 15.01.2018 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2013-14.

The only issue raised by the assessee in the various grounds of appeal is against the order of Ld. CIT(A) not hearing the assessee’s appeal on merits on the ground that assessee has failed to file the appeal online and dismissing the appeal filed in the paper form by the assessee on 18.04.2016.

The facts in brief are that the notification No.S.O.637(E) dated 01.03.2016 was issued by CBDT, New Delhi, amending rule 45 of the I.T. Rules, 1962. The said notification mandates compulsory e-filing of appeals before the appellate commissioner w.e.f. 01.03.2016 in respect of all persons who are required to furnish their return of income electronically. According to the Ld. CIT(A), since the assessee has failed to file the appeal electronically and appeal was filed after show cause notice issued on 10.11.2017 which is not in accordance with the the provisions of the Act and can not be accepted. According to Ld. CIT(A) there are two appeals filed by the assessee one manually and other electronically which are reflecting as pending on ITBA system. The Ld. CIT(A) observed that the manual appeal filed by the assessee is invalid ab-initio as same is not in accordance with the CBDT circular as stated (supra) and thus Ld. CIT(A) held that the other appeal filed by the assessee will be taken up for consideration at appropriate time subject to condonation of delay and fulfillment of other procedures and conditions which may be applicable and thus dismissed the manual appeal filed by the assessee.

At the outset, the Ld. Counsel of the assessee submitted before the Bench that issue is squarely covered by the decision of the co-ordinate bench of the Tribunal in A.Y. 2013-14 wherein it has been held that since the appeal filed manually by the assessee is before the Ld. CIT(A) and therefore Ld. CIT(A) ought not to have dismissed the appeal solely on the ground that assessee has not filed appeal electronically before the appellate commissioner. In this case the facts are slightly different as the assessee has filed appeals manually as well as 3 M/s. Bhaveshwar Properties P. Ltd. electronically. The appeal filed electronically after a show cause notice by Ld. CIT(A) on 10.11.2017 has been kept pending to be taken up for disposal after condonation of delay and subject to fulfillment of other various conditions. The Ld. A.R., therefore, prayed before us that Ld. CIT(A)’s order may be set aside and the direction may be issued to dispose of the appeal on merits.

Ld. D.R., on the other hand, relied on the of Ld. CIT(A).

After hearing both the parties and perusing the material on record, we observe that non filing within the due time by the assessee electronically in terms of notification No.S.O.637(E) dated 01.03.2016 should not result in denying the justice to the deserving litigant as it would lead to miscarriage of justice. The ratio has been laid by the Hon’ble Apex Court in the case of State of Punjab vs. Shyamlal Murari & Others (1976) SC 1177. In this case the assessee has filed e-appeal only after show cause notice issued citing various reasons such as lack of knowledge about e-filing procedures and technical issues connected therewith and thus we are of the view that appeal of the assessee filed manually within the time can not be dismissed without considering the merit of the case on mere technical reasons of not filing the said appeal in e-form. So far as the issue of dismissing the manual appeal is concerned, pending the e-appeal by the assessee as filed in response to show cause notice on 10.11.2017, in our opinion there is no delay in filing the appeal as the subsequent appeal filed by the assessee electronically is only compliance of the show cause notice and in continuation of the appeal filed manually within the due time and can not be said to be filed out of time limit. Under these

In the result, the appeal of the assessee is allowed.