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TMI Blog2021 (12) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... Facility on E-filing Portal. The Learned Assessing Officer confirmed the same. Under the circumstances the CIT(A) accepted the appeal in physical mode. 3. It is submitted that CIT(A) having accepted the appeal in physical mode as valid cannot reject the appeal as not maintainable. The Conclusion arrived at by the Learned Commissioner of Income tax (Appeals) is contrary to the facts and against the principle of natural justice. The Appeal filed in physical mode shall be restored for adjudication. 4. Brief facts Appellant before us had filed an appeal in Paper form on 23/01/2019 against the order of AO dated 28/12/2018. Thereafter, the appellant had filed revised Form No.35 in Paper Form on 27/01/2020 on account of change of communication address. The Rule 45 of the I.T.Rules mandates requires compulsory filing of the e-appeals before the Ld.CIT(A) w.e.f from 01/03/2016. 5. As the assessee has not filed the appeal in the electronic form, therefore the Ld.CIT(A) vide impungned order had dismissed the appeal, treating the appeal as invalid. Paragraph 6.5 and 6.6 of the appellate order it was mentioned as under:- 6.5 It is well settled law that right of appeal is neither an abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enclosures are not defective but the fee payable as per the statutory provisions of section 253(6) was not paid. Since the Memo of Appeal is not accompanied by the fee, as prescribed, we are of the opinion that there is no discretion to the ITAT to accept Memorandum of Appeal filed, in violation of the statutory provisions, ITAT being a quasi-judicial body under the I.T. Act, it has to follow the statutory provisions as prescribed. Under analogous circumstances, while dealing with an appeal filed by an assesses against the order passed under section 271 FA, the ITAT, Cochin Bench in the case of Sub-Registrar Office. Meppayur - Kozhikode v. DfT (intelligence) [2013] 37 taxmann.com 36/[2014J 64 SOT 10 (URO) observed that the Tribunal cannot travel beyond the provisions of the Act and cannot admit an appeal even if the opponent party gives consent permitting the appellant to file an appeal. In other words, the consent of a litigant party would not confer jurisdiction on a quasi judicial authority unless and until it is otherwise conferred under the statute". Further, the Hon'ble ITAT, Hyderabad in the case of Central Rural Studies & Development Madakasira vs. ACIT, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest the legal guardian to represent you and perform the required functions. In case your legal guardian has not registered in e-filing request the guardian to register in e-filing." 9. To show the willingness to file the appeal in electronically and for its redressal , the assessee, had also approached to the AO regarding his failure to access through portal vide communication dated 15/01/2019. AO after receiving the communication ,informed to the assessee as under:- "On perusal of the above request and as per the discussion with the AR of the assessee, a ticket was raised from the office on ITBA Portal of the Income tax Department on 15.01.2019 bearing ticket no. 669759. The ticket raised is reproduced as under:- "The assessee has filed grievance letter regarding logging to the e-filing portal. The details of the issue is as under: The assessee is the legal Representative of the Estate of Late Ramniklal R. Mehta having assessed to PAN . BVFPR9968B which is formed pursuant to Death of Late Mr. Ramniklal R Mehta on 07.04.2002. As per the Death Certificate and as per the PAN Database of the Estate Date of Birth of Estate is the Date of Death of MrRamniklal R Mehta i.e 07.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.114 of paper book. Admittedly as Rule 45 of the I.T.Rules, the appeal is required to be filled in the electronic form and the assessee is duty bound to file the appeal in electronic form. Rule 45 of the I.T.Rules provides as under:- "45. (1) An appeal to the Commissioner (Appeals) shall be made in Form no.35 (2) Form no.35 shall be furnished in the following manner, namely:- (a) in the case of a person who is required to furnish return of income electronically under sub-rule (3) of rule 12. (i) by furnishing the form electronically under digital signature, if the return of income is furnished under digital signature; (ii) by furnishing the form electronically through electronic verification code n a case not covered under sub-clause(i)." 13. Admittedly, during the assessment proceedings before the AO Mr D R Mehta appeared in the assessment proceedings, his statement was also recorded. The AO in paragraph 6.5 and 6.12 had categorically recorded as under:- 6.5 Assessee's contention is however, not acceptable. Enquiries pertaining to PAN KYC have been conducted with NSDL e-Governance Infrastructure Ltd, from which it is seen that the present PAN (i.e., BVFPR9968B) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Estate) had stated that the proceeds of the jewellery owned by his father Late Shri RamniklalRajmal Mehta were deposited in the account of the investment company, White Cedar Investments Limited and the amount deposited amounted to Rs. 11,46,72,012/- as on March 2006 and the assessee would pay tax on this amount. Thus, the assessee itself had admitted that the funds in the name of White Cedar/Red Oak actually represented the undisclosed wealth of Late Shri RamniklalRajmal Mehta. The assessment was completed by adding the remaining amount of investment in the said HSBC bank account; and the total income was determined vide order dated 30.05.2014 u/s 153A/143(3) at Rs. 20P,12,56,838/-. The addition so made has been confirmed by the CIT(A) vide his order dated 10.03.2017. The assessments for AY 2007-08 to AY 2012-13 were also completed u/s 153A/143(3). The income shown in those years was on account of (nominal) bank interest. The tax payable thereon was nil. Balance sheet filed for all these years reflects investments in shares, cash in hand and cash in bank. The bank balance as on 31.03.2011 [ A.Y.2011-12] is shown at Rs. 18,10,153/- whereas that as on 31.03.2012 [A.Y.2012-13] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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