Jagbir Singh Sharma, New Delhi V. ACIT, New Delhi

ITA 809/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3035 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-05-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 13-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ KUMAR GUPTA CA MS BADOBANI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 809/DEL/201 7 ASSESSMENT YEAR : 2013-14 JAGBIR SINGH SHARMA 9, MAIN ROAD, ASOLA FATEHPUR BERI, NEW DELHI 110 074 VS. ACIT, CIRCLE 62 (1) NEW DELHI (APPELLANT) (RESPONDENT) PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(A) -20, NEW DELHI DATED 20 TH DECEMBER, 2016 FOR ASSESSMENT YEAR 2013-14. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER PASSED THE ORDER U/S 143(3) ON DATED 19 TH JANUARY, 2016. THE ASSESSEE FILED APPEAL AGAINST THE ASSESSMENT ORDER BEFORE LD. CIT(A) ON 30 TH MARCH, 2016 MANUALLY IN PAPER FORM. AS PER NOTIFICATION NO. 11 / 2016 DATED 1 ST MARCH, 2016, RULE 45 HAS 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 SHALL FURNISH APPEAL IN FORM NO. 35 ELECTRONICALLY ONLY. SUBSEQUENTLY VIDE CIRCULAR NO. 20/2016 DATED 26.5.2 016, BOARD HAS EXTENDED THE ASSESSEE BY : SHRI RAJ KUMAR GUPTA, CA DEPARTMENT BY: MS. BADOBANI, SR. DR DATE OF HEARING 25/05/2017 DATE OF PRONOUNCEMENT 05/06/2017 ITA NO. 809/DEL/2017 JAGBIR SINGH SHARMA VS. ACIT PAGE 2 OF 3 DATE OF E-FILING OF APPEALS TILL 15 TH JUNE 2016 FOR THE TAXPAYERS WHO COULD NOT FILE THE E-APPEAL IN ACCORDANCE WITH RULE 45 IN TIME. SI NCE THE ASSESSEE FILED APPEAL MANUALLY THEREFORE LETTER WAS ADDRESSED TO ASSESSEE ON 2 ND DECEMBER 2016 EXPLAINING THE ABOVE POSITION AND ASSESSEE WAS DIRE CTED TO EXPLAIN IF APPEAL IS FILED ELECTRONICALLY, THEN FILE A COPY OF THE SAME. THE REPLY OF THE ASSESSEE WAS SOUGHT BY 16 TH DECEMBER, 2016, OTHERWISE IT WOULD BE PRESUMED THA T 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 LD. CIT(A) ON THE GIVEN DATE THERE WAS NO COMPLIANCE. LD. CIT(A) THEREFORE NOTED THAT THE ASS ESSEE HAS NOT FILED THE E- APPEAL AS PER RULES. THEREFORE MANUAL APPEAL WOULD BE TREATED INVALID AND NOT MAINTAINABLE AND WAS ACCORDINGLY DISMISSED IN LIMIN E. 3. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT THE LD. CIT(A) SHOULD TREAT THE APPEAL AS DEFECTIVE AND SHOULD HAVE PROVIDED PROPER AND REASONABLE TIME TO REMOVE THE DEFECTS BY FILING E-APPEAL. HE HAS FURTHER SUBMITTED THAT THE NOTICE DATED 2 ND DECEMBER, 2016 WAS NOT RECEIVED BY THE ASSESSEE. HE HAS SUBMITTED THAT LATER ON ASSESSEE FILED E-APPEAL ON 14 TH FEBRUARY, 2017. ASSESSEE ALSO FILED AFFIDAVIT OF C OUNSEL FOR ASSESSEE IN WHICH IT IS AFFIRMED THAT DUE TO IGNORA NCE OF THE ABOVE CIRCULARS, HE COULD NOT FILE E-APPEAL WITHIN TIME. ON THE OTHER H AND LD. DR SUBMITTED THAT IT IS MANDATORY TO FILE APPEAL ELECTRONICALLY. THEREFORE MANUAL APPEAL WAS RIGHTLY REJECTED. 4. AFTER CONSIDERING RIVAL SUBMISSIONS I AM OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LD. CIT(A). LD. CIT (A) HAS ISSUED A LETTER DATED ITA NO. 809/DEL/2017 JAGBIR SINGH SHARMA VS. ACIT PAGE 3 OF 3 2 ND DECEMBER, 2016 TO ASSESSEE DIRECTING TO FILE COPY OF E-APPEAL, BUT ASSESSEE DENIED THE RECEIPT OF THE SAME. LD. CIT(A) IN THE I MPUGNED ORDER DID NOT MENTION IF THE SAID NOTICE WAS SERVED UPON ASSESSEE . FURTHER THE CONTENTION OF ASSESSEE APPEARS TO HAVE SOME MERIT THAT IN CASE TH E APPEAL OF ASSESSEE WAS NOT FILED ELECTRONICALLY, SUFFICIENT TIME COULD BE GIVEN TO ASSESSEE TO REMOVE THE DEFECT IN THE APPEAL BY FILING APPEAL ELECTRONICALL Y . HOWEVER IT IS A FACT THAT THERE IS NO EVIDENCE ON RECORD IF LD. CIT(A) HAS GIVEN RE ASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THIS REGARD BECAU SE THERE IS NO EVIDENCE OF RECORD TO PROVE THAT LETTER DATED 2 ND DECEMBER, 2016 HAS BEEN RECEIVED BY THE ASSESSEE. THUS PRINCIPLE OF NATURAL JUSTICE IS VIO LATED IN THE MATTER AND THE ORDER OF LD. CIT(A) CANNOT BE SUSTAINED IN LAW. THEREFORE , THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). IN THIS VIEW OF MATTER I SET ASIDE THE IMPUGNED ORDER AND RESTORE THE APPEAL OF ASSESS EE TO THE FILE OF THE LD. CIT(A) WITH DIRECTION TO RE-DECIDE THE MATTER BY GI VING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT. SD/- ( BHAVNESH SAINI ) JUDICIAL MEMBER DATED: 05/06/2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR