Income Tax Appellate Tribunal - Delhi
Ms Ritu Verma,, New Delhi vs Acit, New Delhi on 17 August, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH 'SMC' : NEW DELHI)
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
ITA No. 491/Del/2017
Assessment Year: 2008-09
RITU VERMA, VS. ACIT, CENTRAL CIRCLE-27
36, ARADHANA ENCLAVE, JHANDEWALAN,
1ST FLOOR, SECTOR-13, NEW DELHI
R.K. PURAM,
NEW DELHI
(PAN: ACHPV5044J)
(APPELLANT) (RESPONDENT)
Assessee by : Sh. Arvind Kumar, Adv.
Revenue by : Sh. T. Vasanthan, Sr. DR
ORDER
This appeal has been filed by the Assessee against the Order dated 30.11.2016 of the Ld. Commissioner of Income Tax (Appeals)-31, New Delhi relevant to assessment year 2008-09.
2. The grounds raised in the appeal read as under:-
1. On the facts and in the circumstances of the case, the order passed by the Ld. CIT (A) u/s.250 of the I.T. Act is bad in law and void ab initio.
2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred by arriving at a conclusion that the order passed by the Assessing Officer u/s 143(3) r.w.s. 147 has become non-est based on the observation that Ld. Pr. CIT.{C)-3, New Delhi has passed an order u/s 263 of the Act and that under the said order, Ld. Pr. CIT has 2 directed Assessing Officer to reframe the Assessment order for the relevant year.
2.1 On the facts and in the circumstances of the case, the learned CIT(A) has erred by dismissing the appeal u/s 264A of the Act preferred by' the appellant against the order passed by Assessing Officer u/s 143(3) r.w.s. 147 which is without any basis whatsoever to the effect that Ld. CIT(A) has been vague as to on which ground he has dismissed the appeal.
2.2 On the facts and circumstances of the case, the Ld. CIT(A) has erred in not carrying out his duty of passing his judgment in respect of the said appeal and has shunned by merely dismissing the appeal stating that an order u/s 263 has been passed and hence the present Assessment Order is non-est.
3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in dismissing the appeal on the ground that appellant failed to file the e-appeal as per CBDT circular even though the appellant did file e-appeal on 25/06/2016.
And also, the appellant had already manually filed the appeal before the Honorable CIT(A), which was received by it on 25/04/2016.
4. The appellant craves leave to add, alter, amend and/or withdraw any ground or grounds of appeal .either before or during the course of hearing of the appeal.
3. Facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of brevity.
4. During the hearing, Ld. Counsel of the assessee has filed a Paper Book containing pages 1-91 in which he has attached the copy 3 of the assessment order dated 31.3.2016 for AY 2008-09 passed u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 together with Demand Notice; request letter dated 23.4.2016 before CIT(A)-29, New Delhi, for filing Manual Appeal; copy of Form No. 35 together with Grounds of appeal filed by the appellant before CIT(A)-29, New Delhi dated 25.4.2016 for AY 2008-09; Acknowledgement dated 25.6.2016 for e-filing of appeal before CIT(A), Delhi-29 in case of appellant for AY 2008-09, together with receipt; email dated 25.6.2016 received from Income tax India e-filing.gov.in to the appellant; appellate order dated 30.11.2016 passed by CIT(A)-31, New Delhi vide appeal no. 116/2016-17/190; order u/s. 263 of the Income tax Act, 1961 dated 20.10.2016, passed by Principal CIT, Cetnral-3, New Delhi; Form No. 36 filed against order u/s. 263 before the ITAT in Appeal No. 6427/Del/2016 on 16.12.2016 together with grounds of appeal and tax challan receipt; Circular No. 20/2016 dated 26.5.2016 issued by CBDT on the subject of E-filing of appeals : extension of time limit; judgment of Hon'ble Supreme Court of India in Hossein Kasam Dada vs. State of MP (1953 AIR 221); order of ITAT, Kolkata in Garden Reach Shipbuilders & Engineers Ltd. vs. CIT 61 taxmann.com 193; Judgement of Hon'ble Supreme Court of India in State of MP vs. Pradeep Kumar dated 12.9.2000 in Appeal (Civil) 4994 of 2000; Judgement of Hon'ble Supreme Court of India in CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443; judgment of Hon'ble High Court of Madras in M. Loganathan vs. ITO 4 25 taxmann.com 174 and order of ITAT, Hyderabad in Sri Surakshitha Homes vs. ITO in ITA No. 1570/Hyd/2013 dated 31.8.2015. During the hearing, Ld. Counsel of the assessee draw my attention towards the page no. 53 to 61 i.e. the judgment of Hon'ble Supreme Court of India in Hossein Kasam Dada vs. State of MP (1953 AIR 221 and page no. 70-74 i.e. the Judgement of Hon'ble Supreme Court of India in State of MP vs. Pradeep Kumar dated 12.9.2000 in Appeal (Civil) 4994 of 2000 and requested that in view of the aforesaid judgments of the Hon'ble Supreme Court, the matter may be set aside to the file of the Ld. CIT(A) to decide the same afresh, after giving adequate opportunity of being heard to the assessee.
5. On the contrary, Ld. DR relied upon the orders of the authorities below.
6. I have heard both the parties and perused the records, especially the orders of the authorities below. I find that Ld. Counsel of the assessee has filed a Paper Book containing pages 1-91 in which he has attached the copy of the assessment order dated 31.3.2016 for AY 2008-09 passed u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 together with Demand Notice; request letter dated 23.4.2016 before CIT(A)-29, New Delhi, for filing Manual Appeal; copy of Form No. 35 together with Grounds of appeal filed by the appellant before CIT(A)-29, New Delhi dated 25.4.2016 for AY 2008-09; Acknowledgement dated 25.6.2016 for e-filing of appeal before 5 CIT(A), Delhi-29 in case of appellant for AY 2008-09, together with receipt; email dated 25.6.2016 received from Income tax India e- filing.gov.in to the appellant; appellate order dated 30.11.2016 passed by CIT(A)-31, New Delhi vide appeal no. 116/2016-17/190; order u/s. 263 of the Income tax Act, 1961 dated 20.10.2016, passed by Principal CIT, Cetnral-3, New Delhi; Form No. 36 filed against order u/s. 263 before the ITAT in Appeal No. 6427/Del/2016 on 16.12.2016 together with grounds of appeal and tax challan receipt; Circular No. 20/2016 dated 26.5.2016 issued by CBDT on the subject of E-filing of appeals : extension of time limit; judgment of Hon'ble Supreme Court of India in Hossein Kasam Dada vs. State of MP (1953 AIR 221); order of ITAT, Kolkata in Garden Reach Shipbuilders & Engineers Ltd. vs. CIT 61 taxmann.com 193; Judgement of Hon'ble Supreme Court of India in State of MP vs. Pradeep Kumar dated 12.9.2000 in Appeal (Civil) 4994 of 2000; Judgement of Hon'ble Supreme Court of India in CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443; judgment of Hon'ble High Court of Madras in M. Loganathan vs. ITO 25 taxmann.com 174 and order of ITAT, Hyderabad in Sri Surakshitha Homes vs. ITO in ITA No. 1570/Hyd/2013 dated 31.8.2015. I have also perused the page no. 53 to 61 i.e. the judgment of Hon'ble Supreme Court of India in Hossein Kasam Dada vs. State of MP (1953 AIR 221 and the page no. 70-74 i.e. the Judgement of Hon'ble Supreme Court of India in State of MP vs. Pradeep Kumar dated 12.9.2000 in Appeal (Civil) 6 4994 of 2000. I further perused the finding of the Ld. CIT(A) given in the impugned order dated 30.11.2016 vide para no. 7 & 8 wherein the Ld. CIT(A) has observed as under:-
7. "I have considered the findings recorded by the Ld. AO as per the assessment orders, the impugned penalty orders, the facts of the case on record and the submissions made by the appellant. As per order u/s. 263, Ld. Pr.
CIT(C)-3, New Delhi has directed the AO to reframe the assessment order for the assessment year 2008-09 in accordance with the provisions of law and the directions given in the said order. In view of the above, the impugned order becomes non-est and as a result the appeal filed against the same is rendered infructuous and accordingly, liable to be dismissed.
8. It may further be mentioned here that Rule 45 of the Income Tax Rules, 1962, mandate compulsory e-filing of appeals before the Commissioners of Income Tax (Appeals) w.e.f. 1.3.2016 in respect of persons who are required to furnish return of income electronically. The CBDT vide circular No. 20/2016 dated 26.5.2016, had extended the time limit for filing of such appeals which were due to be filed by 15.5.2016, upto 7 15.6.2016. All e-appeals filed within this extended period would be treated as appeals filed in time. However, admittedly the appellant did not file the e-appeal for the year under consideration even in the extended period. Therefore, in the absence of thee-appeal, the aforesaid appeal is not-est and on this ground alone the same is liable to be dismissed."
6.1 Keeping in view of the facts and circumstances of the case, as explained above and in view of the judgments of the Hon'ble Supreme Court of India in the case of Hossein Kasam Dada vs. State of MP (1953 AIR 221) placed at page no. 53-61 of the Paper Book and the Judgement of Hon'ble Supreme Court of India in State of MP vs. Pradeep Kumar dated 12.9.2000 in Appeal (Civil) 4994 of 2000 at 70-74 of the Paper Book, I direct the Ld. CIT(A) to condone the delay in dispute. And also in the interest of justice, I set aside the issues in dispute to the file of the Ld. CIT(A) with the directions to decide the same afresh, under the law, after giving adequate opportunity of being heard to the assessee and decide the appeal on merit and pass a speaking order, keeping in view of the judgment of the Hon'ble Supreme Court of India in the case of Hossein Kasam Dada vs. State of MP (1953 AIR 221) and the Judgement of Hon'ble 8 Supreme Court of India in State of MP vs. Pradeep Kumar dated 12.9.2000 in Appeal (Civil) 4994 of 2000. The Assessee is also directed to fully cooperate with the Ld. CIT(A) in the proceedings and did not take any unnecessary adjournment and produce all the documents/evidences filed before the Ld. CIT(A) to substantiate her case.
7. In the result, the Assessee's appeal is allowed for statistical purposes.
Order pronounced in Open Court on this 17-08-2017.
Sd/-
(H.S. SIDHU) JUDICIAL MEMBER Dated : 17-08-2017 SR BHATANGAR Copy forwarded to:
1.Appellant
2.Respondent
3.CIT
4.CIT(A), New Delhi.
5.CIT(ITAT), New Delhi.
AR, ITAT NEW DELHI.