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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’ : NEW DELHI
Before: SHRI H.S. SIDHU
This appeal has been filed by the Assessee against the
Order dated 31.10.2017 of the Ld. Commissioner of Income
Tax (Appeals), Ghaziabad relevant to assessment year 2013-
14.
The grounds raised in the appeal read as under:-
That the Ld. CIT (A) erred in law, on facts
and in surrounding circumstances in
dismissing, in limine the manual appeal
(though filed within time prescribed in section
249(2) of I.T. Act) in exparte manner merely
on a venial flaw of non filling of e-appeal,
thereby resulting in meritorious matter being
thrown out at the very threshold and cause of
justice being defeated, for no deliberate
fault/default on the part of the appellant.
That in doing so, the Ld. CIT(A) had not only
failed to verify the legal validity of service of
notice dated 02-01-2017, but also failed to
point out the so called technical omission to the
Ld. Counsel for the appellants on various dated
of hearing in between 02-01-2017 (date of
notice) till 31-10-2017 (date of impugned
order), thereby depriving the appellant from
removing the technical defect during the course
of appellate proceedings.
That the Ld. CIT (A) further erred in law, in
failing to provide opportunity of being heard
even on the date of hearing even though
written submission was filed on 23-10-2017
itself.
That without prejudice to above, mandatory
e-filing of appeal, has not been stipulated in
section 246/249/250 of I.T. Act.
That even otherwise too, the appeal could
not be filed electronically on account of lack of
legal knowledge/advice involving no deliberate
default on the part of appellant.
That the appellant craves leave to
modify/amend or add anyone or more grounds. PRAYER
That keeping in view the settled law when
substantial justice and technical considerations
are pitted against each other, the cause of
substantial justice deserve to be preferred, the
impugned appellate order may kindly be
quashed and appeal to be heard on merits after
condoning delay.
Facts narrated by the revenue authorities are not disputed
by both the parties, hence, the same are not repeated here for
the sake of brevity.
During the hearing, Ld. Counsel of the assessee has filed a
small Paper Book containing pages 1-6 in which the assessee
has attached the copy of application for condonation of delay in
e-filing of appeal filed before Ld. CIT(A); copy of written
submission dated 23.10.2017; acknowledgement of receipt
dated 15.12.2017 of e-filing of appeal; copy of Form No. 35
dated 15.12.2017 alongwith statement of facts and grounds of
appeal and certified that the above documents are on record of
Ld. CIT(A). He submitted that Ld. CIT(A) has dismissed the
manual appeal of the assessee in limine due to non-filing of e-
appeal and failed to provide opportunity of being heard to the
assessee and did not condone the delay in e-filing despite the
fact that application for condonation of delay was filed before
him. Therefore, he requested that the issues in dispute may be
set aside to the Ld. CIT(A) for fresh adjudication and with the
directions to condone the delay in e-filing. In support of his
contention, he supported the decision by filing the copy thereof
i.e. order dated 17.8.2017 of the ITAT, SMC Bench, New Delhi
in the case of Ritu Verma vs. ACIT passed in ITA No.
491/Del/2017 (AY 2008-09) wherein on similar facts and
circumstances, the issues in dispute were set aside to the file of
the Ld. CIT(A) for fresh consideration, after condoning the delay
in dispute.
Ld. Sr. DR did not raise any serious objection to the
request of the ld. Counsel of the assessee.
I have heard the rival contentions and perused the
records, especially the grounds of appeal as well as the
decision dated 17.8.2017 of the ITAT, SMC Bench, New Delhi in
the case of Ritu Verma vs. ACIT passed in ITA No.
491/Del/2017 (AY 2008-09). For the sake of clarity, I am
reproducing the relevant finding of the Tribunal as under:-
“6. I have heard both the parties and perused the
records, especially the orders of the authorities
below. I find that Ld. Counsel of the assessee has
filed a Paper Book containing pages 1-91 in which he
has attached the copy of the assessment order dated
31.3.2016 for AY 2008-09 passed u/s. 143(3) r.w.s.
147 of the Income Tax Act, 1961 together with
Demand Notice; request letter dated 23.4.2016
before CIT(A)-29, New Delhi, for filing Manual
Appeal; copy of Form No. 35 together with Grounds
of appeal filed by the appellant before CIT(A)-29,
New Delhi dated 25.4.2016 for AY 2008-09;
Acknowledgement dated 25.6.2016 for e-filing of
appeal before CIT(A), Delhi-29 in case of appellant
for AY 2008-09, together with receipt; email dated
25.6.2016 received from Income tax India e-
filing.gov.in to the appellant; appellate order dated
30.11.2016 passed by CIT(A)-31, New Delhi vide
appeal no. 116/2016-17/190; order u/s. 263 of the
Income tax Act, 1961 dated 20.10.2016, passed by
Principal CIT, Cetnral-3, New Delhi; Form No. 36
filed against order u/s. 263 before the ITAT in Appeal
No. 6427/Del/2016 on 16.12.2016 together with
grounds of appeal and tax challan receipt; Circular
No. 20/2016 dated 26.5.2016 issued by CBDT on the
subject of E-filing of appeals : extension of time
limit; judgment of Hon’ble Supreme Court of India
in Hossein Kasam Dada vs. State of MP (1953 AIR
221); order of ITAT, Kolkata in Garden Reach
Shipbuilders & Engineers Ltd. vs. CIT 61
taxmann.com 193; Judgement of Hon’ble Supreme
Court of India in State of MP vs. Pradeep Kumar
dated 12.9.2000 in Appeal (Civil) 4994 of 2000;
Judgement of Hon’ble Supreme Court of India in CIT
vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR
443; judgment of Hon’ble High Court of Madras in M.
Loganathan vs. ITO 25 taxmann.com 174 and order
of ITAT, Hyderabad in Sri Surakshitha Homes vs. ITO
in ITA No. 1570/Hyd/2013 dated 31.8.2015. I have
also perused the page no. 53 to 61 i.e. the
judgment of Hon’ble Supreme Court of India in
Hossein Kasam Dada vs. State of MP (1953 AIR 221
and the page no. 70-74 i.e. the Judgement of
Hon’ble Supreme Court of India in State of MP vs.
Pradeep Kumar dated 12.9.2000 in Appeal (Civil)
4994 of 2000. I further perused the finding of the
Ld. CIT(A) given in the impugned order dated
30.11.2016 vide para no. 7 & 8 wherein the Ld.
CIT(A) has observed as under:-
“I have considered the findings recorded by the Ld. AO as per the assessment orders, the impugned penalty orders, the facts of the case on record and the submissions made by the appellant. As per order u/s. 263, Ld. Pr. CIT(C)-3, New Delhi has directed the AO to reframe the assessment order for the assessment year 2008-09 in accordance with the provisions of law and the directions given in the said order. In view of the above, the impugned order becomes non-est and as
a result the appeal filed against the same is rendered infructuous and accordingly, liable to be dismissed. 8. It may further be mentioned here that Rule 45 of the Income Tax Rules, 1962, mandate compulsory e-filing of appeals before the Commissioners of Income Tax (Appeals) w.e.f. 1.3.2016 in respect of persons who are required to furnish return of income electronically. The CBDT vide circular No. 20/2016 dated 26.5.2016, had extended the time limit for filing of such appeals which were due to be filed by 15.5.2016, upto 15.6.2016. All e-appeals filed within this extended period would be treated as appeals filed in time. However, admittedly the appellant did not file the e-appeal for the year under consideration even in the extended period. Therefore, in the absence of thee- appeal, the aforesaid appeal is not-est and on this ground alone the same is liable to be dismissed.” 6.1 After perusing the aforesaid finding of the tribunal and in view of the judgments of the Hon’ble Supreme Court of India in the case of Hossein Kasam Dada vs. State of MP (1953 AIR 221) and the Judgement of Hon’ble Supreme Court of India in State of MP vs. Pradeep Kumar dated 12.9.2000 in Appeal (Civil) 4994 of 2000 as discussed in aforesaid Tribunal’s order, I
am of the view that the facts and circumstances of the present case are identical to the decision of the Tribunal in the case of Ritu Verma vs. ACIT (Supra), therefore, respectfully following the said precedent, I direct the Ld. CIT(A) to condone the delay in dispute and also in the interest of justice, I set aside the issues in dispute to the file of the Ld. CIT(A) with the directions to decide the same afresh, under the law, after giving adequate opportunity of being heard to the assessee and decide the appeal on merit and pass a speaking order. The Assessee is also directed to fully cooperate with the Ld. CIT(A) in the proceedings and did not take any unnecessary adjournment and produce all the documents/evidences filed before the Ld. CIT(A) to substantiate her case. 7. In the result, the Assessee’s appeal is allowed for
statistical purposes.
Order pronounced on 01-06-2018.
Sd/- (H.S. SIDHU) JUDICIAL MEMBER Dated : 01-06-2018
SR BHATANGAR