Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWAL
Date of Hearing – 08.05.2019 Date of Order – 15.05.2019
O R D E R PER SAKTIJIT DEY. J.M.
The aforesaid appeal has been filed by the assessee challenging the order dated 28th February 2018, passed by the learned Commissioner (Appeals)–21, Mumbai, dismissing assessee’s appeal in limini for not filing it electronically.
2 CRH Management Services Pvt. Ltd. 2. When the appeal was called for hearing, no one was present on behalf of the assessee to represent the case. The notice of hearing sent by registered post has also returned back unserved. In these circumstances, we proceed to dispose of the appeal ex–parte qua the assessee after hearing the learned Departmental Representative and the material available on record.
Brief facts are, the assessment in case of the assessee was completed under section 143(3) of the Act vide order dated 11th March 2016, making a disallowance of ` 12 lakh under section 40(a)(ia) of the Act. Against the assessment order so passed, the assessee filed an appeal before the learned Commissioner (Appeals) manually. Learned Commissioner (Appeals) noticing that the assessee has not filed the appeal electronically as per the amended rule 45 of the Income Tax Rules, 1962, but has filed it manually, dismissed assessee’s appeal in limini without deciding the issue raised therein on merit.
We have heard the learned Departmental Representative and perused the material on record. Undisputedly, the assessee had filed the appeal before first appellate authority within the time limit prescribed under the statute. However, learned Commissioner (Appeals) has dismissed assessee’s appeal in limine since it was not filed electronically in terms of amended under rule 45 of the Rules. In our opinion, when the assessee has filed the appeal manually within
3 CRH Management Services Pvt. Ltd. the prescribed period of limitation, learned Commissioner (Appeals) should not have dismissed the appeal limine for a mere technical breach. Rather he should have provided an opportunity to the assessee to file the appeal electronically and decided the appeal on merit. Notably, while deciding identical nature of dispute in All India Federation of Tax Practioners v/s ITO, [2018] 166 DTR (Trib.) 276 (Mum.), the Co–ordinate Bench has held that when the appeal filed by the assessee manually is within the prescribed period of limitation, learned Commissioner (Appeals) ought not to have dismissed appeal solely on the ground of non–filing of appeal electronically. Further, the Bench permitted the assessee to file the appeal electronically within a period of ten days and directed learned Commissioner (Appeals) to decide the appeal on merit. The aforesaid decision of the Co–ordinate Bench squarely applies to the facts of the present case. In view of the aforesaid, we set aside the impugned order of the learned Commissioner (Appeals) and direct the assessee to file the appeal electronically, if not filed, within a period of 10 days from the date of receipt of this order and on filing of such appeal electronically, learned Commissioner (Appeals) is directed to decide the appeal on merits after due opportunity of being heard to the assessee. Grounds raised are allowed for statistical purposes.
4 CRH Management Services Pvt. Ltd.
In the result, appeal is allowed for statistical purposes. Order pronounced in the open Court on 15.05.2019