SWELECT ENERGY SYSTEMS LTD.,CHENNAI vs. DCIT CORPORATE CIRCLE 6(2), CHENNAI

This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals)-15, Chennai, dated 26.12.2018 relevant to the assessment year 2013-14. Besides challenging the issue on merit, the assessee has mainly challenged the ex-parte order passed by the ld. CIT(A).

Brief facts of the case are that the assessee is an individual and filed her return of income for the assessment year 2013-14 on 28.11.2013 declaring total income of ₹. 619,62,91,910/-. The return filed by 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 ₹. 630,45,00,042/- by making addition under section 14A r.w. Rule 8D of ₹.18,82,08,132/-.

The assessee carried the matter in 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. The ld. Counsel for the assessee has submitted that the ld. CIT(A) has erroneously dismissed the appeal summarily without going into the merits of the facts and without appreciating the fact that the assessee has filed manual appeal within the time stipulated under the Act, besides e-filing of the appeal immediately she was notified and 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 29.04.2016, 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 dated 13.12.2018 was sent to the assessee to explain the cause for non- compliance with the aforesaid Rule. In compliance to the notice the assessee filed the appeal electronically on 22.12.2018. Since there was a delay of 920 days in e-filing from the extended due date of e-filing i.e., 15.06.2016 and no petition to condone the delay has been filed by the assessee, the ld. CIT(A) dismissed the appeal without adjudicating the issue on merits. On similar facts and circumstances in an identical issue, 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 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. 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 adjudication on merits in accordance with law by allowing 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 19th July, 2019 in Chennai.