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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI MANOJ KUMAR AGGARWAL, AM & SHRI RAVISH SOOD, JM
Per Bench 1.1 The common grievance of the assessee in all the above appeals is that the Ld. first appellate authority has dismissed the assessee’s appeal in limine on technical ground since the appeals before Ld. first appellate authority was filed manually in paper form, which as per the extant rule, was required to be e-filed in the prescribed manner. The date of all the four impugned orders is 29/03/2017 which has been passed by same appellate authority and the appellate orders are similarly worded. Since material facts & circumstances of all the appeals are pari-materia, we take up for AY 2015-16 as the lead case for adjudication. 1.2 As evident from the impugned order for AY 2015-16, Appeal Nos.CIT(A)-59/IT-168 to 177/ITO(TDS)-1(2)(1)/2015-16 dated 29/03/2017, which is subject matter of ITA No.3764/Mum/2017, the appeal has been dismissed by first appellate authority by making following observations: - 1.2 It was noted that the instant appeal was manually filed in this office on 01/03/2016, i.e. in paper form. Accordingly, vide letter dated February 08, 2017, the appellant was given an opportunity to explain as to why the manually filed appeal should not be treated as invalid in light of Notification No. S.O.637(E) dated March 01, 2016, of the CBDT, New Delhi, issued in exercise of the powers conferred by section 249(1), read with section 295 of the Act. The Income-tax (3rd Amendment) Rules, 2016, amended rule 45 of the Income-tax Rules, 1962, mandating compulsory electronic filing of appeals before an Appellate Commissioner with effect from March,01,2016, for all persons who are required to furnish their return of income electronically. This is demonstrated by the explicit language of the aforementioned Notification to the effect that such an appeal shall be made electronically in Form No. 35 under a digital signature/electronic verification code. However, despite successful service of the said letter on 10.02.2017, there has been no response. Resultantly, the manual appeal filed is not maintainable at the threshold. Thus, there would be no cause to examine any other aspect of the Kapoor Glass (India) Pvt.Ltd Assessment Years-2015-16 & 2016-17 appeal, including any deficiency in documents or the merits of the case. In the result, the appeal is dismissed in limine. 2.0 Appeal No. : CIT(A)-59/IT-169/ITO(TDS)-1(2)(1)/2015-16 3.0 Appeal No. : CIT(A)-59/IT-170/ITO(TDS)-1(2)(1)/2015-16 4.0 Appeal No. : CIT(A)-59/IT-171/ITO(TDS)-1(2)(1)/2015-16 5.0 Appeal No. : CIT(A)-59/IT-172/ITO(TDS)-1(2)(1)/2015-16 6.0 Appeal No. : CIT(A)-59/IT-173/ITO(TDS)-1(2)(1)/2015-16 7.0 Appeal No. : CIT(A)-59/IT-174/ITO(TDS)-1(2)(1)/2015-16 8.0 Appeal No. : CIT(A)-59/IT-175/ITO(TDS)-1(2)(1)/2015-16 9.0 Appeal No. : CIT(A)-59/IT-176/ITO(TDS)-1(2)(1)/2015-16 10.0 Appeal No. : CIT(A)-59/IT-177/ITO(TDS)-1(2)(1)/2015-16 All the above nine appeals were also filed manually on March 01, 2016, having identical ground of appeal except for the amount impugned. Accordingly, for the reason mentioned in Appeal No. IT-168/2015-16 supra, these appeals are also invalid and are dismissed in limine. Consequent to this, the other aspects do not survive for consideration. 11.0 Before parting, the appellant is advised to examine the PAN/TAN mentioned by it which may require correction. 12.0 In the result, the ten appeals are not admitted, being invalid. For statistical purposes, however, they are treated as dismissed.
Aggrieved as aforesaid, the assessee is in further appeal before us.
The Ld. Authorized Representative for Assessee [AR], Shri Shekhar Gupta, has pleaded for restoration of appeals by placing reliance on the recent decision of this Tribunal rendered in All India Federation of Tax Petitioners Vs. ITO [ITA No. 7134/Mum/2017 dated 04/05/2018]. However, at the same time, the Ld. AR also submitted that the appeals filed manually in paper-form before Ld. first appellate authority were filed with a delay, the condonation of which was sought by the assessee and the same has not been considered by Ld. CIT(A) in view of dismissal of appeals on technical grounds. The Ld. DR, Shri Manoj Kumar Singh opposed the same by submitting that the extant rules provided for filing of appeals in the prescribed manner which was mandatory. It was further submitted that the cited decision of the Tribunal Kapoor Glass (India) Pvt.Ltd Assessment Years-2015-16 & 2016-17 addressed a situation where-in the manual return, itself, was filed within prescribed time limit, which is not the case here.
At the outset, it is noted that the name of the erstwhile assessee namely Dinshi Ampoule Makers Private Limited has been changed to Kapoor Glass (India) Private Limited vide fresh certificate of incorporation pursuant to change of name dated 23/10/2015 issued by the Registrar of Companies, Mumbai, a copy of which is on record. The change has been reflected by the assessee in Revised Form No. 36, which is in order. Our adjudication on the issues is given in succeeding paragraphs. 4.1 We have carefully heard the rival contentions and perused relevant material on record. The assessee is aggrieved by levy of Late Filing fees u/s 234E on account of delay in filing of TDS returns for various quarters of AY 2015-16. The fees has been levied in orders passed on various dates u/s 200A by CPC(TDS), Vaishali, Ghaziabad, UP – 201 010 [PAN jurisdiction : ITO(TDS)-1(2)(1), Mumbai]. 4.2 Agitating the levy of late filing fees, the assessee preferred appeal before Ld. CIT(A) on 01/03/2016 manually in paper-form. However, the said appeal in terms of CBDT Notification No. SO 637(E) [No. 11/2016 (F. No. 149/150/2015-TPL)], dated 1-3-2016, was required to file digitally in electronic form. The failure to file the same in the prescribed form resulted into dismissal of appeal in limine. The Ld. AR, drawing strength from the cited order of the Tribunal, has sought restoration of the appeals to Ld. CIT(A). The Ld. AR has also submitted that it can demonstrate sufficient cause for delay in filing the appeals, if provided Kapoor Glass (India) Pvt.Ltd Assessment Years-2015-16 & 2016-17 with another opportunity of being heard since the same has not been delved upon by Ld. CIT(A). 4.3 After due consideration of factual matrix and keeping in view the principles of natural justice, we are of the considered opinion that mere technical lapses could not deprive the assessee to seek justice in deserving cases. Therefore, in terms of the cited judgment of the Tribunal, the assessee is directed to e-file the appeal in the prescribed manner before Ld. first appellate authority within 10 days from the date of receipt of this order. Thereafter, the Ld. first appellate authority is directed to adjudicate the preliminary issue of condonation of delay and if the same is found to be convincing, deal with the merits of the case as agitated by the assessee. Needless to add that, failure to e-file the appeals as directed by us here-in-above shall result into confirmation of stand of Ld. CIT(A). 4.4 The appeal stands allowed for statistical purposes.
Similar are the facts and circumstances of other three appeals before us and therefore, the same are adjudicated on similar lines. Accordingly, all these appeals also stand allowed for statistical purposes.
Finally, all appeals stand allowed for statistical purposes in terms of our above order. Order pronounced in the open court on 05th October, 2018.