Appeal before CIT rejected for not filed electronically remanded. Sufficient time to be given to assessee to remove defect by filing e Form-35 – ITAT
ABCAUS Case Law Citation:
ABCAUS 1278 (2017) (06) ITAT
The Grievance:
The appellant assessee was aggrieved by the order passed by the Commissioner of Income Tax (Appeals) [CIT(A)] treating the appeal filed manually in paper form in Form-35 as invalid and thereby rejecting it in limine.
Assessment Year : 2013-14
Date/Month of Pronouncement: June, 2017
Brief Facts of the Case:
The Assessing Officer had passed the order u/s 143(3) on 19th January, 2016. The assessee filed an appeal against the assessment order before CIT(A) on 30th March, 2016 manually in paper form.
However, as per CBDT Notification No. 11/2016 dated 1st March, 2016, Rule 45 had 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 is required to furnish appeal in Form No. 35 electronically only.
Subsequently vide circular No. 20/2016 dated 26.5.2016, CBDT had extended the 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 had filed appeal manually therefore a 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 CIT(A) on the given date there was no compliance. Accordingly, CIT(A) noted that the assessee had not filed the e-appeal as prescribed under the Rule 45. Therefore he treated the manual appeal as invalid and not maintainable and was accordingly dismissed in limine.
Contentions of the appellant assessee:
It was submitted that the CIT(A) should have treated the appeal as defective and should have provided proper and reasonable time to remove the defects by filing e-appeal.
It was further submitted that the notice dated 2nd December, 2016 was not received by the assessee. It was submitted that later on, the assessee had filed e-appeal on 14th February, 2017. The The assessee also filed an affidavit of his counsel affirming that due to ignorance of the CBDT circulars, he could not file e-appeal within time.
Contention of the Respondent Revenue:
It was submitted that it is mandatory to file appeal electronically. Therefore manual appeal was rightly rejected.
Observations made by the Tribunal:
It was observed that the assessee had denied the receipt of any letter from CIT(A). Also the CIT(A) in the impugned order did not mention if the said notice was served upon assessee.
The ITAT found merit in the contention of assessee 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. Further there was no evidence on record if CIT(A) had 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, the Tribunal was of the view that the principle of natural justice was violated in the matter and the order of CIT(A) could not be sustained in law.
Held:
The matter was set aside and restored to the file of the CIT(A) for reconsideration by giving reasonable and sufficient opportunity of being heard to the assessee.
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