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IN THE ITAT, DELHI BENCH
N.K. SAINI, A.M. & AMIT SHUKLA, J.M.
Gurinder Singh Dhillon v. ITO
19 April, 2017
Assessee by: Deepak Thakkar, CA
Revenue by: Anil Kumar Sharma, Senior Departmental Representative
N. K. Saini, A.M.
This is an appeal by the assessee against the order dated 24-10-2016 of learned Commissioner (Appeals)–5, Delhi.
2. Following grounds have been raised in this appeal :–
The action of the Commissioner (Appeals) – 5 for dismissing the appeal is unjust, arbitrary and illegal as original paper appeal has been filed due within time as prescribed under the act along with all the required compliances and the same has been taken on note by the Commissioner (Appeals) – 5.
The learned Commissioner (Appeals) grossly failed to realize that the assessee has filed online appeal at a subsequent date also in order to comply with the CBDT Notification No. SO 637(E) (No.11 / 2016 (F.No.149/150/2015- TPL)), 2016.
The appeal filed with Commissioner (Appeals) – 5 should be restored.
2. The only grievance of the assessee in this appeal relates to the ex parte dismissal of the appeal by the first appellate authority.
3. Facts of the case in brief are that the assessee filed the return of income on 29-3-2014 declaring income of Rs. 11,02,557. Later on, the case was selected for scrutiny. The assessing officer completed the assessment on 7-3-2016 at an income of Rs. 13,02,557 by making a disallowance of Rs. 2,00,000 under section 57 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).
4. Being aggrieved, the assessee carried the matter before the learned Commissioner (Appeals) who dismissed the appeal ex parte in limine by observing in para 3.5 of the impugned order as under :–
“3.5 To sum up, the appellant was required to file the appeal only in electronic form latest by 15-6-2016. However, the present appeal / copy of the appeal filed manually in this office is a paper appeal and thus does not meet the requirement of the aforestated rules. I have bestowed my careful attention to the matter and am of the opinion that since the appellant was mandatory required to file the appeal electronically within the extended period till 15-6-2016, but has failed to do, the appeal cannot be treated as filled as per the mandates of the Act / Rules and there being no other way by which the defect could be removed other than by filing the appeal electronically (as per the applicable provisions), the paper appeal is to be treated as non-est and the appeal is to be dismissed in limine. The appellant has filed the appeal electronically on 8-10-2016, which would be considered, in the priority of disposal of appeal as per CBDT parameters, and having due regard to application for condonation.”
5. Now, the assessee is in appeal.
6. The learned Counsel for the assessee submitted that the provision for filing the appeal electronically came into force only in this year and before that the appeal was required to be filed manually which the assessee filed on 18-4-2016 well in time as per the old provision and later on, the appeal was also filed electronically on 8-10-2016 but the learned Commissioner (Appeals) dismissed the appeal in limine. It was stated that the assessee filed the appeal manually as well as electronically, therefore, the learned Commissioner (Appeals) was not justified in treating the appeal as non est and dismissing the same in limine.
7. In his rival submissions, the learned Departmental Representative supported the impugned order passed by the learned Commissioner (Appeals).
8. We have considered the submissions of both the parties and carefully gone through the material available on record. In the present case, it is an admitted fact that the assessee filed the appeal before the learned Commissioner (Appeals) manually within time as per the old provisions. Later on, the manner of furnishing the appeal in Form No.35 before the learned Commissioner (Appeals) was amended vide Notification No. 5/2016 dated 6-4-2016 and the procedure was laid down. Thereafter, the CBDT extended the period for filing the appeal electronically to 15-6.2016 and the assessee filed the appeal electronically on 8-10-2016. In the present case, the earlier appeal filed by the assessee manually on 18-4-2016 was well within time. We, therefore, considering the totality of the facts, direct the learned Commissioner (Appeals) to decide the appeal of the assessee on merits after condoning the delay, if any, in filing the appeal electronically since it was the first year when the provisions for filing the appeal were changed and it was directed to file electronically, the hardship faced by the assessee was also explained before the learned Commissioner (Appeals) which is mentioned in para 3.1 of the impugned order that the delay was occasioned due to technical issue and lack of knowledge regarding the duly introduced e-filing procedure. In view of the aforesaid discussion, we set aside the impugned order and direct the learned Commissioner (Appeals) to decide the appeal of the assessee on merits after condoning the delay, if any, by providing due and reasonable opportunity of being heard to the assessee.
9. In the result, the appeal of the assessee is allowed for statistical purposes.