Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 705/JP/2019
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 705/JP/2019 fu/kZkj.k o"kZ@Assessment Year : 2014-15 cuk Shri Amit Kumar Kaushik The ITO, e C/o M/s Kaushik Pharma & Distributors, Ward-7(4), Vs. Behind CHC Station Road, Jaipur. Bassi, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AYZPK8860F vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Ashish Gupta (C.A.) jktLo dh vksj ls@ Revenue by : Miss Chanchal Meena (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 09/07/2020 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/07/2020 vkns'k@ ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 12.03.2019 of ld. CIT(A), Jaipur for the assessment order 2014-15. Due to prevailing COVID-19 pandemic condition the hearing of the appeal is concluded through video conference. The assessee has raised following grounds:- Shri Amit Kumar Kaushik vs. ITO
“1. Under the facts and circumstances of the case the learned CIT(A) has erred in passing the ex-parte order without giving opportunity to the assessee of being heard which is void ab-initio deserves to be quashed. 2. Under the facts and circumstances of the case the learned CIT(A) has erred in confirming the addition of Rs. 5,16,100/- u/s 68 of the Income tax Act, 1961 made by the learned AO.”
Ground no. 1 is regarding dismissal of the appeal of the ld. CIT(A) by passing ex-parte impugned order without giving opportunity to the assessee.
We have heard the ld. AR as well as ld. DR and considered the relevant material available on record. At the outset, we note that the ld. CIT(A) has dismissed the appeal of the assessee summarily for want of appearance as well as on the ground that the assessee has not filed e- appeal as required Under rule 45(1) of the Income Tax Rules, 1963 as amended w.e.f. 01.03.2016. Therefore, the ld. CIT(A) has treated the appeal as not maintainable and nonest for want of e-filing. It is pertinent to note that non filing of appeal electronically just after amendment of Rule 45(1) of the IT Rules is only a defect in the filing when the assessee has already filed a physical appeal well within the period of limitation. Therefore, instead of treating the appeal as not 2 Shri Amit Kumar Kaushik vs. ITO maintainable and nonest a defect notice ought to have been issued to the assessee. We further note that this Tribunal has taken up consistent view on this issue the defect in filing of the appeal can be removed and cannot be a ground to dismiss the appeal without giving an opportunity to the assessee to remove the defect. In case of Bikaner Distributors Pvt. ltd. vs. DCIT in to 1180/JP2018 this Tribunal vide order dated 24.01.2019 has considered this issued in para 5 as under:-
“5. We have considered the rival submissions as well as the relevant material on record. At the outset, we note that the ld. CIT (A) has recorded the facts regarding filing of the appeals that the assessee filed the seven appeals arising from the assessment orders passed under section 143(3) read with section 153A of the IT Act dated 22nd March, 2016. All these seven appeals were filed within the period of limitation on 21st April, 2016. The appeals were taken up for hearing on 21st June, 2018. However, there was no notice or show cause notice given to the assessee by the ld. CIT (A) before dismissing the appeals by treating the same as not maintainable for want of e-filing. Therefore, we find that dismissal of the appeals without giving an opportunity to the assessee to remove the defect and to file the appeals electronically amounts to violation of principles of natural justice. Further, once the appeals filed manually were taken up for hearing, then even if there was a defect on account of non-filing of the appeals electronically, the assessee ought to have been granted an opportunity to remove the defect. Though there may be a question of delay due to late filing of the appeals electronically, however, once the appeals were filed manually within the period of limitation, then the subsequent filing of the appeals electronically can be taken up by considering the fact that it was not a delay for taking the steps but it was only a 3 Shri Amit Kumar Kaushik vs. ITO defect in filing the appeals. It is also relevant to note that the amendment in Rule 45 of the IT Rules was brought into Statute with effect from 01.03.2016 and, therefore, this is the first year of the amendment requiring e-filing of the appeal and hence the non-filing of the appeal electronically cannot be considered as a defect so fatal to straight-away dismiss the appeal without giving an opportunity to remove the said defect. This Bench has considered an identical issue in case of Kailash Chand Jat vs. ACIT (supra) in para 4 as under :-
“4. We have considered the rival submissions as well as relevant material on record. At the outset we note that the appeal filed by the assessee (manually) was duly taken up for hearing by the ld. CIT(A) and after hearing the representative of the assessee Shri K.L. Choudhary, C.A. the ld. CIT(A) has finally dismissed the appeal on the ground of non maintainability in paras 3.1.1, 3.1.2 & 4 as under:-
“3.1.1 I have considered the assessment order, submission made by the appellant as well as the paper appeal. On perusal of the details, it is observed that this appeal was filed manually in this office on 23.1.2017. As per the provisions of Rule 45 of the IT Rules, 1961, it has been made compulsory/mandatory to e-file the appeal before the CIT(A) w.e.f. 01.03.2016 in respect of persons who are required to furnish return of income electronically. Subsequently, this time limit was extended to 15.06.2016, vide Circular No. 20/2016 (F. No. 279/MISC/M- 54/2016/ITJ dated 26.05.2016). During the appellate proceedings, the ITBA system was checked to verify whether the appellant has filed the appeal electronically as mandated under Rule 45 of IT Rules. The ITBA verification showed that the appeal has not been filed electronically. 3.1.2 In view of the above facts, it is evidence that the case of the appellant is covered by the provision of section 249 r.w. Rule 4 Shri Amit Kumar Kaushik vs. ITO 45 of IT Rules which lays down that every appeal shall be filed in the prescribed form and shall be verified in the prescribed manner. In this case the appellant had filed the appeal manually and was required to e-file in accordance with Rule 45 of IT Rules for the extended period i.e. 15.06.2016. Since, this appeal has been filed manually, it is defective appeal which is non- maintainable and is being filed. The e-appeal may be taken up separately for adjudication whenever it is filed as per law and existing instruction in force.
Thus, this appeal is defective and non-maintainable and is being filed/dismissed. Thus, no adjudication on merit is considered necessary. In the result, the appeal is dismissed on technical grounds being manually filed and hence inadmissible ab-initio.”
Thus, it is clear that the ld. CIT(A) took cognizance of the appeal filed manually though it was defective. Once the appeal filed by the assessee found to be defective because non compliance of Rule 45 of the IT Rules, the proper course of action was to allow the assessee to file the appeal through e-filing and then, the appeal so filed by the assessee ought to have been decided on merits. Thus, the appeal of the assessee was dismissed being not maintainable without even issuing any notice or raising such a question of maintainability of the appeal to the assessee. Hence, the order passed by the ld. CIT(A) is in violation of principles of natural justice and consequently not sustainable in law. The Mumbai Benches of the Tribunal in case of M/s All India Federation of Tax Practitioners vs. ITO (supra) while considering the requirement of e-filing has held in para 6 as under:- “6. We have heard the counsels for both the parties and we have also perused the material placed on record as well as orders passed by the revenue authorities. From the records we noticed that electronically filing of the appeals was introduced for the first Shri Amit Kumar Kaushik vs. ITO time vide rule 45 of I.T. Rules 1962, mandating compulsory e- filing of appeals before appellate Commissioner with effect from 1st March 2016. We noticed that in this respect, there is no corresponding amendment in any of the provisions of the substantive law i.e I.T. Act, 1961. As per the facts of the present case, the assessment in the above case was completed u/s 143(3) of the I.T. Act 1961. However the assessee has filed appeal before Ld. CIT(A) in paper form as prescribed under the provisions of I.T. Act 1961 within the prescribed period of limitation. But the same was dismissed by Ld. CIT(A) by holding that assessee had not filed appeal through electronic form, which is mandatory as per I.T. Rules 1962. After having considered the entire factual position, we find that Hon’ble Supreme Court in the case of ‘State of Punjab Vs.ShyamalalMurari and others reported in AIR 1976 (SC) 1177’ has categorically held that courts should not go strictly by the rulebook to deny justice to the deserving litigant as it would lead to miscarriage of justice. It has been reiterated by the Hon’ble Supreme Court that all the rules of procedure are handmaid of Justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of Justice. The Hon’ble Apex Court has said in an ‘adversarial’ system, no party should ordinarily be denied the opportunity of participating in the process of Justice dispensation. The Hon’ble Supreme Court in its judgement reported as AIR 2005 (SC) 3304 in the case of ‘RaniKusumVrs. Kanchan Devi,’ reiterated that, a procedural law should not ordinarily be construed as mandatory, as it is always subservient to and is in aid of Justice. Any interpretation, which eludes or frustrates the recipient of Justice, is not to be followed.
Shri Amit Kumar Kaushik vs. ITO
From the facts of the present case, we gathered that the assessee had already filed the appeal in paper form, however only the e-filing of appeal has not been done by the assessee and according to us, the same is only a technical consideration. In this respect, we rely upon the judgement of Hon’ble Supreme Court, wherein the Hon’ble Supreme Court has reiterated that if in a given circumstances, the technical consideration and substantial Justice are pitted against each other, then in that eventuality the cause of substantial Justice deserves to be preferred and cannot be overshadowed or negatived by such technical considerations. Apart from above we have also noticed that the Coordinate Bench of Hon’ble ITAT Delhi Bench in appeal in case titled Gurinder Singh Dhillon Vrs. ITO had restored the matter to the file of Ld. CIT(a) under identical circumstances with a direction do decide appeal afresh on merit, after condoning the delay, if any. Since in the present case, we find that appeal in the paper form was already with Ld. CIT(A), therefore in that eventuality the Ld. CIT(A) ought not to have dismissed the appeal solely on the ground that the assessee has not filed the appeal electronically before the appellate Commissioner. Keeping in view the facts and circumstances as well as the case laws discussed and relied upon above, we are of the considered view that the cause of Justice would be served in case, we set aside the orders of Ld. CIT(A) & allow the present appeal. While seeking the compliance, we direct the assessee to file the appeal electronically within 10 days from the date of receipt of this order. In case, the directions are followed then in that eventuality, the delay in e-filing the appeal shall stand condoned. Ld. CIT(A) is further directed to consider the appeal filed by the assessee on merits by passing a speaking order. Resultantly, we allow the appeal filed by the assessee.”
Shri Amit Kumar Kaushik vs. ITO
In view of the above facts and circumstances of the case, we set aside the impugned order of the ld. CIT(A) and remand the matter to the record of the ld. CIT(A) with direction to the assessee to e-file the appeal. The ld. CIT(A) shall decide the appeal of the assessee on merits. Needless to say the assessee be given an appropriate opportunity before passing a fresh order.”
Accordingly, in view of the facts and circumstances of the case when the ld. CIT (A) has dismissed the appeal without even giving an opportunity of hearing to the assessee to remove the defect, the impugned order passed by the ld. CIT (A) is not sustainable and the same is set aside. The matters are remanded to the record of CIT (A). The assessee is directed to file the appeals electronically within a period of 30 days from the date of this order and the ld. CIT (A) then decide the appeals of the assessee on merits.”
Accordingly, the matter is remanded to the record of the ld. CIT(A) for granting one more opportunity to the assessee to rectify the defect by filing the appeal electronically within a period of 30 days from the date of this order and the ld. CIT(A) then decide the appeal of the assessee on merits after giving an opportunity of hearing to the assessee. Other ground raised by the assessee stand disposed off as set aside to the record of the ld. CIT(A). Shri Amit Kumar Kaushik vs. ITO In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 10/07/2020. Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vikram Singh Yadav) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10/07/2020. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Amit Kumar Kaushik, Jaipur. 2. izR;FkhZ@ The Respondent- ITO, Ward-7(4), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 705/JP/2019} vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत