SHRI KAILASH CHAND JAT,JAIPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, 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. 373/JP/2018 fu/kZkj.k o"kZ@Assessment Year : 2015-16 cuke Shri Kailash Chand Jat The ACIT, Vs. B-93, Shivpuri Colony, Airport Road, Central Circle-1, Buddisinghpura, Sanganer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AEDPJ 8411 P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal (C.A.) jktLo dh vksj ls@ Revenue by : Shri Varinder Mehta (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 10/07/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 12/07/2018 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 01.01.2018 of ld. CIT(A), Jaipur for the assessment year 2015-16. The assessee has raised the following grounds of appeal as under:-

“1. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in dismissing appeal of assessee in limine, without considering the submission made and without providing adequate opportunity of being heard.

1.1 That, the ld. CIT(A) further erred in dismissing the appeal by holding the same defective, solely for the reason that appeal was filed in paper form instead of online mode. Appellant prays that order has been passed by ld. CIT(A) without providing opportunity to rectify the defect in appeal filed, thus order so passed is against the principles of natural justice and deserves to be quashed. 2. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in confirming the addition of Rs. 10,00,000/- made by ld. AO arbitrarily and by completely brushing aside the submission made and evidences adduced. Appellant prays addition so confirmed, deserves to be deleted. 3. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal.”

dismissed the appeal of the assessee in limine on the ground that the

assessee has not filed the appeal through e- filing as per the provisions

of Rule 45 of the IT Rules. He has further contended that the ld. CIT(A)

has not issued any show cause notice or defect memo to grant an

opportunity to the assessee to rectify the defect in filing of the appeal.

Thus, the ld. AR has submitted that the impugned order passed by the

ld. CIT(A) may be set aside and the assessee may be allowed to file the

appeal through e-filing. In support of his contention, he has relied upon

the decision dated 04.05.2018 Mumbai Benches of the Tribunal in case 2 of M/s All India Federation of Tax Practitioners vs. ITO in ITA

No. 7134/Mum/2017.

and submitted that the ld. CIT(A) has already given a liberty to the

assessee to e-file the appeal.

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 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. 4. 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 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. 5 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. 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 causeof 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 ITA No. 6595/Del/16 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 6 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.”

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.

In the result, the appeal of the assessee is allowed for statistical

purposes.

Order pronounced in the open court on 12/07/2018.

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:- 12/07/2018. *Santosh. 7

आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Kailash Chand Jat, Jaipur. 2. izR;FkhZ@ The Respondent- ACIT, Central Circle-1, 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. 373/JP/2018} vkns'kkuqlkj@ By order,

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