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Income Tax Appellate Tribunal, DELHI BENCH - ‘SMC’ NEW DELHI
Before: SHRI BHAVNESH SAINI
This appeal by assessee has been directed against the order of Ld. CIT(A) -20, New Delhi dated 20th December, 2016 for assessment year 2013-14.
Briefly the facts of the case are that the Assessing Officer passed the order u/s 143(3) on dated 19th January, 2016. The assessee filed appeal against the assessment order before Ld. CIT(A) on 30th March, 2016 manually in paper form. As per notification No. 11 / 2016 dated 1st March, 2016, rule 45 has been introduced and the complete proceedings of e-filing of appeal has been prescribed. As per Rule 45 (2) (a), a person who is required to file the return of income electronically shall furnish appeal in Form No. 35 electronically only.
Subsequently vide circular No. 20/2016 dated 26.5.2016, Board has extended the Jagbir Singh Sharma vs. ACIT date of e-filing of appeals till 15th June 2016 for the taxpayers who could not file the e-appeal in accordance with Rule 45 in time. Since the assessee filed appeal manually therefore letter was addressed to assessee on 2nd December 2016 explaining the above position and assessee was directed to explain if appeal is filed electronically, then file a copy of the same. The reply of the assessee was sought by 16th December, 2016, otherwise it would be presumed that the case of assessee would fall under Rule 45(2)(a) of the I.T. Rules and manual appeal will be decided accordingly. According to Ld. CIT(A) on the given date there was no compliance. Ld. CIT(A) therefore noted that the assessee has not filed the e- appeal as per rules. Therefore manual appeal would be treated invalid and not maintainable and was accordingly dismissed in limine.
I have heard Ld. Representatives of both the parties. Ld. Counsel for assessee submitted that the Ld. CIT(A) should treat the appeal as defective and should have provided proper and reasonable time to remove the defects by filing e-appeal. He has further submitted that the notice dated 2nd December, 2016 was not received by the assessee. He has submitted that later on assessee filed e-appeal on 14th February, 2017. Assessee also filed affidavit of counsel for assessee in which it is affirmed that due to ignorance of the above circulars, he could not file e-appeal within time. On the other hand Ld. DR submitted that it is mandatory to file appeal electronically. Therefore manual appeal was rightly rejected.
After considering rival submissions I am of the view the matter requires reconsideration at the level of Ld. CIT(A). Ld. CIT(A) has issued a letter dated
Jagbir Singh Sharma vs. ACIT 2nd December, 2016 to assessee directing to file copy of e-appeal, but assessee denied the receipt of the same. Ld. CIT(A) in the impugned order did not mention if the said notice was served upon assessee. Further the contention of assessee appears to have some merit that in case the appeal of assessee was not filed electronically, sufficient time could be given to assessee to remove the defect in the appeal by filing appeal electronically . However it is a fact that there is no evidence on record if Ld. CIT(A) has given reasonable sufficient opportunity of being heard to the assessee in this regard because there is no evidence of record to prove that letter dated 2nd December, 2016 has been received by the assessee. Thus principle of natural justice is violated in the matter and the order of Ld. CIT(A) cannot be sustained in law. Therefore, the matter requires reconsideration at the level of the Ld. CIT(A). In this view of matter I set aside the impugned order and restore the appeal of assessee to the file of the Ld. CIT(A) with direction to re-decide the matter by giving reasonable sufficient opportunity of being heard to the assessee.
In the result appeal of assessee is allowed for statistical purposes.
Pronounced in the Open Court.