Right to appeal provided in statute u/s 249 can not be taken away by CBDT in a delegated manner – ITAT

The right to appeal has been provided in statute u/s 249 which can only be taken away by legislative amendment and not by CBDT in a delegated manner – ITAT

ABCAUS Case Law Citation:
ABCAUS 2441 (2018) 07 ITAT

The instant appeal was filed by the assessee against the order passed by the CIT(A) in rejecting the appeal of the assessee merely on the gound that it was not filed electronically as required by CBDT.

Sub-section (2) of section 249 of the Income Tax Act, 1961 (the Act) authorise an assessee to file an appeal within 30 days from service of the assessment order/demand notice. In the present case, against the order of the Assessing Officer (AO) passed under section 143(3) of the Act, the assessee had filed its manual appeal before the CIT(A) well within 30 days from the date of assessment order.  

However, the CIT(A) had dismissed the appeal of the assessee without adjudicating the issue on merit on the ground that CBDT had amended rule 45 of Income Tax Rules 1962 vide which the assessee was required to file the appeal from the assessment order electronically. However, the assessee failed to transmit its appeal in electronic form within statutory period and filed appeal in electronic mode after the expiry of the prescribed time limit.

The Tribunal was of the view that the CIT(A) was not justified in dismissing the appeal of the assessee on such technical issue without adjudicating it on merit.

The Tribunal opined that the right to file has been provided in statute under section 249 which can only be taken away by legislative amendment and not in a delegated manner. The CIT(A) should have decided the appeal on merit as the appeal was filed within due date.  The Tribunal also noted that when the assessment order was passed and right to file appeal was available with the assessee. At that point of time, CBDT circular had not came into existence. Therefore, CIT(A) ought to have looked into that aspects also.

The Tribunal opined that when both the assessment order was passed and the appeal was filed when the CBDT circular had not came into existence, then the Commissioner could not levelled allegations against the assessee about non-maintainability of its appeal.

The Tribunal allowed the appeal of the assessee and issues under appeal were set aside to the CIT(A) to decide them on merit.

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