VISHNU DUTT. N. KUMAWAT,MUMBAI vs. ADDL CIT 20(3), MUMBAI

Briefly stated the facts are, assessee is an individual. For the assessment year under consideration, assessee filed return of income on 27th October 2006, declaring total income of ` 1,18,34,860. Assessment in case of the assessee was completed under section 143(3) of the Act vide order dated 16th February 2008, determining the total income at ` 1,65,36,525. As it appears from the record against the assessment order so passed, assessee preferred appeal before the learned Commissioner (Appeals), however, mistakenly, the appeal was filed in the office of the Assessing Officer himself viz. Asstt. CIT, Range–20(3), Mumbai. Subsequently, when certain recovery proceedings were initiated and assessee contacted his Counsel, on enquiry, it was noticed that the appeal in Form no.35, has been wrongly filed in the office of the Asstt. CIT instead of the concerned CIT(A). Being aware of this fact, the assessee on 29th February 2012, filed a fresh appeal before the learned Commissioner (Appeals) in form no.35. While explaining the delay in filing of the appeal, though assessee explained that the delay caused was due to the filing of appeal before the wrong authority, the learned Commissioner (Appeals) not being satisfied with the cause for delay shown by the assessee, dismissed assessee’s appeal in limine without condoning the delay.

We have considered the submissions of the parties and perused the material available on record. As could be seen from the facts emerging from record, the assessment order along with demand notice was served on the assessee on 22nd December 2008. The appeal fees of ` 1,000, was deposited by the assessee on 14th January 2009. On 19th January 2009, assessee filed the appeal memo in form no.35, along with accompanying documents before the Asstt. CIT, Range–20(3), Mumbai, instead of concerned CIT(A). Thus, from the aforesaid facts, it is clearly evident that the assessee had filed the appeal within the prescribed time of 30 days, though, may be before the wrong forum. It is a fact on record that the Asstt. CIT, Range–20(3), Mumbai, had forwarded the appeal documents to the concerned CIT(A) on 20th December 2013. From the letter of the Asstt. CIT, Range–20(3), Mumbai, it is evident that the assessee had filed the appeal papers before him on 19th January 2009. Thus, from the aforesaid facts, it is very much clear that the assessee’s appeal was ready for filing within the prescribed period of 30 days but under a bonafide mistake, assessee filed the appeal within the prescribed time before the Asstt. CIT, who happened to be the Assessing Officer, instead of filing before the learned Commissioner (Appeals). In our view, the mistake in filing the appeal before the 4 Shri Vishnu Dutt N. Kumawat Asstt. CIT, presumably under a belief that the appeal documents have to be filed before the Assessing Officer constitutes a bonafide mistake, therefore, there is reasonable case for delay in filing the appeal before the learned Commissioner (Appeals). Law is fairly well settled that an effort should be made to decide the appeal on merits rather than dismissing the appeal at the threshold on some technical reasons such as delay. Keeping in view the aforesaid principle of law, we set aside the impugned order of learned Commissioner (Appeals) and direct him to decide assessee’s appeal on merit after condoning the delay. Needless to say, learned Commissioner (Appeals) must afford reasonable opportunity of being heard to the assessee.

In the result, appeal stands allowed for statistical purposes. Order pronounced in the open Court on 27.01.2016