THE SOUTHERN INDIA CHAMBER OF COMMERCE AND INDUSTRY,CHENNAI vs. ITO EXEMPTION WARD 2, CHENNAI

Brief facts of the case of the assessee are that the assessee, a trade organization registered u/s.25 of the Companies Act, 1956 as well as registered u/s.12AA of the Act, filed its return of income on 28.09.2013 for the AY 2013-14 admitting ‘nil’ income after claiming exemption u/s.11 :- 2 -: of the Act. The AO completed the assessment u/s.143(3) of the IT Act vide order dated 29.03.2016 assessing the total income of Rs.43,66,090/- by adding the excess of income over expenditure including profit on sale of land after denying the claim of exemption u/s11 of the Act.

Aggrieved by the assessee, the assessee preferred an appeal before the Ld.CIT(A). Since the assessee could not e-file the appeal, the Ld.CIT(A) dismissed the appeal filed by the assessee.

On being aggrieved, the assessee is in appeal before the Tribunal.

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 the amendment to Rule 45 of the IT Rules modified 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 parties, 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 before the Ld.CIT(A) on 27.04.2016 which is well within the time provided under the Act. Since the assessee did not comply with Rule 45 of the IT Rules which mandates compulsory e-filing of appeals before the Ld.CIT(A) w.e.f. 01.03.2016 in respect of persons who are required to furnish return of income electronically, the Ld.AR of the assessee was requested to clarify on the aforesaid aspect vide Office noting dated 20.03.2019. In response, the Ld.AR appeared on 21.03.2019 before the Ld.CIT(A) and submitted that the appeal in Form 35 has been e-filed on 21.03.2019 and requested for condonation of delay of 1055 days in e-filing the appeal vide petition dated 21.03.2019. The Ld.CIT(A) dismissed the appeal filed by the assessee without adjudicating the issue on merits. On similar facts and circumstances in an identical issue the Mumbai Bench of this Tribunal in the case of All India Federation of Tax Practitioners v. ITO reported in [2016] 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 dated 19.04.2017 had held that the delay was liable to be condoned. Apart from this, we have perused 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 saying that the delay in e-filing of the appeal is condoned :- 4 -: and the issues in this appeal are restored to the file of the Ld.CIT(A) for adjudication on merits in accordance with law by allowing an opportunity of being heard to the assessee.

Thus, respectfully following the principles laid down by the Hon’ble Supreme Court in the case of State of Punjab v. Shyamalal Murari & Others, referred to supra, we are of the view that this is a fit case to restore the appeal to the file of the Ld.CIT(A) for 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.