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Income Tax Appellate Tribunal, “SMC-A” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA
O R D E R
Per Shri A.K. Garodia, Accountant Member
This appeal is filed by the assessee which is directed against the order of ld. CIT(A)-3, Bangalore dated 29.01.2018 for Assessment Year 2009-10.
The grounds raised
by the assessee are as under. “1. The Learned Income Tax officer and the Commissioner of Income Tax (Appeals) were erred in passing the order in the manner passed by them. The order being bad in law and is liable to be quashed.
2. In any case the condition precedents for issue of notice U/s. 148 of the Income Tax Act 1961 being absent. The reopening becomes bad in law and consequently the order passed being also bad in law is liable to be quashed.
3. In any case and further prejudice the Learned Income Tax Officer has erred in not accepting the cash deposits are out of the earlier year profit/income. Such treatment against the facts of the case is liable to be deleted.
The order passed by the Learned CIT (A) is against the facts of the case and provisions of Law.
5. For these and other reasons which may be adduced at the time of hearing the appellant prays before your honor to delete the additions made by the Assessing Officer. 6. Appellant craves, leaves to add, to alter, to amend, or to delete any other reason at the time of hearing.”
At the very outset, it was submitted by ld. AR of assessee that it is noted by CIT(A) in para 3.1 of his order that appeal was filed manually by the assessee on 27.04.2016 and the assessee also made request for condonation of delay of 7 days. He further pointed out that in the same Para of his order, it is stated by CIT(A) that the assessee was required to file the appeal by e filing mode only as per CBDT circular No. 20/2016 dated 26.05.2016 and the same was filed by the assessee after a delay of 152 days on 14.11.2016. He submitted that this observation of CIT (A) is not correct that assessee was required to file appeal by way of e filing mode as per this Board circular. In this regard, he drawn my attention to the notification issued by CBDT on 01.03.2016, copy available on pages 32 and 33 of paper book, in which it is stated that in the case of a person who is required to furnish return of income electronically under sub-rule (3) of rule 12, the appeal in Form No. 35 has to be filed electronically under digital signature or through electronic verification code. Thereafter, he drawn my attention to Circular No. 03/2009 dated 21.05.2009 available on pages 30 and 31 of paper book and pointed out that as per this circular, it is mandatory for the firms to whom provisions of section 44AB are applicable and for the companies other than the companies claiming exemption u/s. 11 to furnish the return of income / fringe benefits electronically in the manner mentioned in para 3 of this circular. He submitted that in the case of the assessee, it is not mandatory to file the return of income electronically because the assessee is not subjected to tax u/s. 44AB and therefore, it was not necessary for the assessee to file Form No. 35 electronically as held by CIT (A). He further submitted that since the appeal in paper form was filed by assessee on 27.04.2016, there is delay of only 7 days in filing the appeal in paper form for which the assessee has already made request for condonation of delay of 7 days as noted by CIT(A) in Para 3.1 of its order. He submitted a copy of the same and requested that this delay of 7 days should be condoned and appeal should be decided on merit. The ld. DR of revenue supported the order of CIT(A).
4. I have considered the rival submissions. I find that as per para 3.1 of order of CIT(A), it is stated by him that w.e.f. 01.03.2016, it was mandatory to file appeals through e filing mode and the appeals filed manually cannot be considered as appeal filed in the prescribed manner. As per notification available on pages 32 and 33 of paper book being notification dated 01.03.2016, it comes out that e filing of Form No. 35 was made mandatory only for those assessees who were required to file the return of income in electronic mode and it has been stated in para 2(b) of this notification that in a case where the assessee has the option to furnish the return of income in paper form, the appeal in Form no. 35 can also be filed in paper form although the same can be filed by assessee electronically also if the assessee so desires. Hence in my considered opinion, filing of the appeal in the present case in paper form on 27.04.2016 is in order and the same should be accepted if the delay of 7 days in such filing is condoned. The assessee has already made the request to CIT(A) for condonation of delay of 7 days, copy of which is made available before me also. In the said letter for condonation of delay, it is stated that this delay is for the reason that the assessee was suffering from illness, was hospitalised and after recovery, the appeal was filed without wasting any time.
Considering the facts of the present case in its entirety, I condone the delay of 7 days in filing the appeal in paper form on 27.04.2016. I set aside the order of CIT(A) and restore the matter back to his file for decision on merit after providing adequate opportunity of being heard to both sides. In view of this, no adjudication is called for regarding the merit of the case at the present stage.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.