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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 ..... the Income tax portal to the estate of Shri RamniklalR.Mehta and assessee was forced to file the appeal in physical form . The assessee had preferred the appeal in electronic form on 12/03/2021 against the same assessment order dated 28/12/2018. In our view the revenue can not take the benefit of non functioning/ malfunctioning of its portal and deny the statutory right of the assesse. In any case the assessee can not be non suited for abrastion in the portal of the revenue. CIT(A) is directed to decide the appeals filed by the assessee filled physically as well as electronically on merit - Appeals of the assessee are allowed for statistical purposes . - ITA Nos.628 to 632/Mum/2021 - - - Dated:- 30-11-2021 - Shri Shamim Yahya (AM) And Shri Laliet Kumar (JM) For the Assessee : Shri Nitesh Joshi For the Revenue : Ms. R.M.Madhvi ORDER PER SHRILALIETKUMAR(J.M.).: These appeals by the Assessee are directed against the respective orders of the learned Commissioner of Income Tax (Appeals), Mumbai ( ld.CIT(A) for short) pertain to the respective assessment years as above. 2. Since the issues are common and connected and the appeals were heard together, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d form and shall be verified in the prescribed manner and shall, in case of an appeal made to the Commissioner (Appeals) on or after the 1st day of October 1998, irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by fees prescribed therein. Further the provisions of sec 249 (3) and (4) of the Act gives the discretion to the CIT(A) for admitting an appeal beyond statutory time limit and non adherence of provisions contained in sec 249(4}(b) of the Act. However, no such discretion is stipulated in the Act for non adherence of provision of sec 249(1) of the Act. The usages of word Shall' in provisions of sec 249(1) suggest that filing of appeal in prescribed form and verified in prescribed manner is mandatory and under the statute the Commissioner (Appeals) has no power to waive or condone the same. If the appeal is not filed in prescribed form/manner then the same has to be treated as invalid and not maintainable and the CIT(A) has no discretion to admit the same as valid appeal. It is not the case that the memorandum of appeal is deficient in its enclosures wherein the appeal can be treated as defective and the CIT(A) has disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they have filed e-appeal on 12.03.2021 is not relevant to adjudicate the present appeal filed in paper form and which is under consideration. 6. It was the contention of the Ld. AR for the assessee, that the assessee has filed the appeal in e-form on 12/03/2021 urging condonation of delay in filling of the appeal . 7. To justify the filling of the paper appeal it was submitted by theARthat Shri RamniklalR.Mehtafather of Shri Dilip R Mehta passed away on 07.04.2002. At the time of his death he was holding the PAN No.AAHPM1917B. It was further the contention of the Ld. AR that search in the case of Rosy Blue Group had taken place on 25.08.2011 and a notice under section 153A of the Act was issued to the Estate of Ramniklal R Mehta under the same PAN number. Mr. Dilip R Mehta, legal heir of the Late Shri Ramniklal R Mehta filed the returns of the Estate using the same PAN number. 8. Ar further submitted that, on 28.05.2014, the Shri Dilip R. Mehta applied for a new PAN in the name of the Estate of Ramniklal R Mehta and a new PAN number bearing No. BVFPR9968B was allotted to the Estate of Shri RamniklalR.Mehta. 8.1 It was argued by the Ld. AR that after 30.06.2018 Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to register the aforesaid PAN BVFPR9968B through Legal Representative Gateway to enable him to file the appeals. The letter filed by the assessee along with following documents are attached herewith for your ready reference: 1. PAN of the Estate of Ramniklal R Mehta 2. Screenshot showing error on Direct Login 3. Reasons received from CPC, Bengaluru rejecting the application for registration through Legal Representative. 4. Screenshot showing error with respect to Date of Death 5. Death Certificate. The response received from the ITBA on 15.01.2019 is as follows. Contact e filing helpdesk . Accordingly, the e filing helpdesk was contacted for the same; however, no solution for logging in has been arrived at despite multiple calls and the grievance as well as the ticket are still outstanding. 10. In the above said background, the Ld. AR submitted that the assessee had preferred to file the appeal in physical form, so that it should not be alleged that there was delay on the part of assessee in preferring the appeal, though it was mandatory as per Rules 45 to fie the appeal electronically. It was again submitted that since now the appeal had been preferred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Estate is still functioning and that the assessee's contention that the Estate has ceased to exist, is incorrect and remains unsubstantiated. Further, as noted above, the Singapore information includes several amendment deeds pertaining to each of the family trusts, whereby the members of the family have been added and removed as beneficiaries from time to time. Thus, there does not seem to be any sense of finality and therefore, the Estate cannot be said to have been distributed/dissolved/ceased to exist. There is absolutely no evidence of distribution/dissolution of the Estate after the previous assessment. In the absence of any concrete evidences filed by the assessee, the Estate is held to be still surviving and assessment is being made in the hands of the Estate. 6.12 Lastly, assessee has stated, you have not referred to any information/document with shows that the Estate was in any way associated with the entity (M/s. Red Oak Operations Ltd./White Cedar Investment Ltd.) or four trusts (Veer Trust, Mahaveer Trust, Pine Trust and Beech Trust) named in the reassessment proceedings . However, the assessee's contention cannot be accepted. As noted in the reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R mehta had been filling the return of income electronically, even after the demise of late RR Mehta, therefore the appeal against the AO ,order was required to be filled electronically, as per the bare reading of the Rule 45 read with section 249 of the ACT. 15. From the perusal of the assessment order and the submission made before us. It is abundantly clear that the appeal was filed in physical form , though was required to be filed in electronic form before the appellant authority. Needful was not done and sufficient reasons were given before us for not preferring the appeal in electronic form by the estate of Shri Ramniklal R. Mehta. 16. In our opinion, the Board framed the rules to achieve the ends of Justice and not to put impediments in the path of Justice. The assessee can not be asked to manage the portal of the revenue and forcibly file the appeal electronically. In our view,the assessee made sufficient and sincere efforts to file the appeal in electronic forms, albeit the assessee failed in his efforts for the reasons recorded in the order.In our considered opinion, the non filing of the electronic appeal was on account of the inaccessibility of the Income tax por ..... X X X X Extracts X X X X X X X X Extracts X X X X
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