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Mundra House, 822-A, Shivaju Nagar, Civil Lines, jaipur-302006 9314501680, 9314501791


Appeal filed manually in time but online filed with delay. It was held that delay was occasioned due to technical ‎issue and lack of knowledge regarding the duly introduced e-filing procedure and being first time. So it was directed to the learned ‎Commissioner (Appeals) to decide the appeal of the assessee on merits after condoning the ‎delay

B.P.Mundra > Income Tax > Cases Income tax > 249(1) > Appeal filed manually in time but online filed with delay. It was held that delay was occasioned due to technical ‎issue and lack of knowledge regarding the duly introduced e-filing procedure and being first time. So it was directed to the learned ‎Commissioner (Appeals) to decide the appeal of the assessee on merits after condoning the ‎delay

admin November 16, 2019

249(1), Appeal to file online

Appeal filed manual instead of online

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IN THE ITAT, DELHI BENCH
N.K. SAINI, A.M. & AMIT SHUKLA, J.M.‎
Gurinder Singh Dhillon v. ITO
ITA No.6595/Del/2016‎
‎19 April, 2017‎
Assessee by: Deepak Thakkar, CA
Revenue by: Anil Kumar Sharma, Senior Departmental Representative
ORDER
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.‎

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