George Mathew Vs ACIT (Kerala High Court)
The Kerala High Court considered a writ petition filed by an assessee under the Income Tax Act, 1961, challenging an order passed by the First Appellate Authority under Section 250 rejecting the assessee’s appeal for failure to upload Form No. 35 along with the assessment order, grounds of appeal and statement of facts. The underlying assessment order was dated 24.03.2016 for assessment year 2009-10, against which the petitioner submitted an appeal manually on 26.04.2016. Electronic filing of appeals had commenced from 01.03.2016. The petitioner stated that, after filing the appeal, notices were issued seeking written submissions, leading to an impression that the appeal had been accepted. Subsequently, a notice dated 24.12.2025 required submission of Form No. 35 and connected documents, but the petitioner did not comply due to a communication gap with the Tax Practitioner. The appeal was ultimately rejected through Ext.P9 solely for failure to furnish it in electronic Form No. 35.
The respondents contended that the petitioner had been given several opportunities to submit the appeal electronically but failed to do so. They also relied on Circular No.20/2016 dated 26.05.2016, which provided time up to 15.06.2016 for uploading documents for proper filing of appeals.
The High Court acknowledged that the Department had extended opportunities to the petitioner and that the petitioner failed to avail them. However, the Court noted that the appeal had been submitted in 2016, while Ext.P9 was passed only in 2026, after ten years, without considering the appeal on merits. The Court also noted that, during the intervening period, the petitioner had received notices seeking written submissions. Importantly, the appeal had been filed shortly after electronic filing was introduced, during the transition from manual to electronic filing. The Court observed that confusion and discrepancies during this transition were relevant while considering the parties’ rights and the prejudice caused by the statutory authority’s order.
Although the petitioner had also failed to respond to Ext.P8 requiring Form No. 35 and connected documents, the Court found that rejecting the appeal after ten years without examining its merits would practically take away the petitioner’s further statutory remedies. Considering the peculiar circumstances and principles of equity, the Court held that an opportunity should be provided for the petitioner’s contentions to be considered on merits.
Accordingly, the High Court quashed Ext.P9 and directed the petitioner to submit Form No. 35 along with the requisite documents within three weeks from receipt of the judgment. Upon submission, the documents were to be treated as proper compliance with the statutory requirements and the appeal was directed to be restored by the appellate authority. The matter was thereafter to be decided after providing the petitioner an opportunity of being heard, with the respondents directed to facilitate electronic uploading of the appeal.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The petitioner is an assessee under the Income Tax Act and this writ petition is submitted by the petitioner, being aggrieved by Ext.P9 order passed by the First Appellate authority under Section 250 of the Income Tax Act, 1961, rejecting the appeal submitted by the petitioner, on the ground that, the petitioner failed to upload Form No.35 along with the assessment order, grounds of appeal and statement of facts etc.
2. The facts that led to the filing of this writ petition are as follows:
Being aggrieved by the assessment order dated 24.03.2016, pertaining to the assessment year 2009-10, the petitioner submitted a statutory appeal on 26.04.2016, before the 3rd respondent Appellate Authority. The said appeal was submitted manually, overlooking the fact that, as on the date of submission of the appeal, the electronic filing of the appeal was introduced with effect from 01.03.2016. According to the petitioner, subsequent to the filing of the said appeal, notices were served upon the petitioner requiring the petitioner to furnish written submissions in support of the contentions raised in the appeal and therefore, according to the petitioner, he was under the impression that, the appeal is duly accepted into the file. Later, even though the petitioner was served Ext.P8 notice dated 24.12.2025 requiring the petitioner to furnish Form No.35 and other connected documents, the same could not be complied with by the petitioner, due to a communication gap between the petitioner and the Tax Practitioner. Thus ultimately, the appeal happened to be dismissed as per Ext.P9 order, on the sole reason that, the petitioner failed to furnish the appeal in electronic format in Form No.35. This writ petition is submitted by the petitioner in such circumstances challenging the said order.
3. A detailed statement has been filed by the learned Standing Counsel on behalf of the respondents. In the said statement, various measures the respondents have taken, and the opportunities extended to the petitioner to enable to avail the appellate remedy by submitting an appeal in electronic format, were explained. It is contended that, despite all the said opportunities, the petitioner failed to submit the appeal and it was in those circumstances the order as evidenced by Ext.P9 was passed. The contents of Ext.P8, the notice issued to the petitioner requiring the petitioner to furnish the Form No.35 and connected documents, were also referred to and it was pointed out that, despite the above the petitioner did not respond. Circular No.20/2016 dated 26.05.2016 issued by the Central Board of Direct Taxes was also referred to, to point out that, a time limit was provided for uploading the documents, for filing proper appeals, which was up to 15.06.2016. Thus, it was pointed out that, the said opportunity was also not availed by the petitioner.
4. I have heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondents.
5. Of course, it is true that, going by the observations made in Ext.P9 impugned order and also Ext.P8, it is evident that, the petitioner was extended with the opportunities to submit Form No.35 and connected documents, to pursue the appellate remedy available. Evidently, the petitioner failed to avail the said remedies although, the petitioner has his own explanations for not doing so. Therefore, it is evident that, the Department cannot be found fault with, when going through the procedure adopted by them that ultimately resulted in Ext.P9.
6. However, even while holding so, the fact remains that, the appeal was submitted by the petitioner in the year 2016, and Ext.P9 order was passed in the year 2026. i.e., after ten years, without entering into any finding on merits. It is also to be noted in this regard that, during the interregnum, the petitioner was served with notices requiring the petitioner to submit written submissions in support of the contentions raised against the petitioner. Yet another important aspect to be noticed is that, the appeal was submitted immediately after commencement of the procedure of electronic filing of appeals and thus, it was during the transition period from the manual filing to electronic filing. Therefore, the confusions and discrepancies were bound to occur, due to the change in the system of filing the appeal. Such confusions and discrepancies from the part of assessee are relevant factors, while considering the rights of the parties and the prejudice that are likely to cause from the orders passed by the statutory authority. The fact that, the appeal was submitted during the transition period referred to above, and the subsequent communications issued to the petitioner requiring the petitioner to furnish written submissions in support of the appeal, appears to be good reasons that may create an impression upon the petitioner that, the appeal submitted by the petitioner was duly accepted by the statutory authorities. Therefore, there is some justification on the part of the petitioner to expect an order on merits in the appeal.
7. Of course, it is true that, Ext.P8 communication was issued to the petitioner, requiring the petitioner to furnish the Form No.35 and other connected documents, but the same was not responded to and thus, there is some fault on the part of the petitioner. However, even while considering the aforesaid aspect the fact remains that, despite the fact that an appeal has been submitted in the year 2016, an order happened to be passed after ten years rejecting the appeal, without going into the merits of the matter. Such an order at this point of time, would practically take away all the remedies available to the petitioner, as it may not be possible for the petitioner to pursue further statutory remedies against Ext.P9 as well. Therefore, I am of the view that, on the basis of principles of equity, an opportunity has to be granted to the petitioner in the peculiar facts and circumstances referred to above, to have the contentions of the petitioner considered on merits.
Accordingly, this writ petition is disposed of quashing Ext.P9, with a direction to the petitioner to submit Form No.35 along with requisite documents within a period of three weeks from the date of receipt of a copy of this judgment. Upon submission of the same, the same shall be treated as the proper compliance of the statutory requirements and consequently, the appeal shall be restored by the appellate authority. Thereafter, the matter shall be decided after giving the petitioner an opportunity for being heard. The respondents shall facilitate the petitioner to upload the appeal in the light of the directions issued by this Court.
