RAVI K. SHETH ,MUMBAI vs. DY CIT RANGE-5(3)(2), MUMBAI

O R D E R Per Shamim Yahya (AM) :-

This is an appeal by the assessee directed against the order of learned Commissioner of Income Tax (Appeals) [in short learned CIT(A)] dated 31.10.2019 pertaining to assessment year 2013-14.

2 Shri Ravi K. Sheth 5) The learned Commissioner of Income Tax (Appeals) erred in not accepting the computation of "Income from House Property" in respect of Flat No.l2B in building called "Manek" as returned by the appellant. 6) The learned Commissioner of Income Tax (Appeals) erred in ignoring the decision of the Supreme Court and the jurisdictional High Court which had already interpreted the provisions of Section 23(l)(a). 7) Having regard to the facts and circumstances of the case and the provisions of law, the appellant submits that the learned Commissioner of Income Tax (Appeals) be directed to accept the income from house property in respect of Flat No.l2B in building called "Manek" as returned by the appellant.”

5.4 The Circular No.20/2016 [F.N0.279/MISC/M-54/2016/ITJ], dated 26- 5-2016 which is reproduced above in the beginning itself clarifies that "Rule 45 of the Income Tax Rules, 1962, mandates compulsory e-filing of appeals before Commissioners of Income Tax (Appeals) with effect from 1.3.2016 in respect of persons who are required to furnish return of income electronically" and concludes with the stipulation that "taxpayers who could

3 Shri Ravi K. Sheth not successfully e-file their appeal and had filed paper appeals are required to file an e-appeal in accordance with Rule 45 before the extended period i.e. 15-6-2016. Such e-appeals would also be treated as appeals filed within time.

5.5 Therefore, the appeal filed manually by the appellant on 15/03/2016 is held to be not maintainable and hence dismissed.

5.6 However, the dismissal of this appeal would not cause any prejudice to the appeal filed electronically subsequently. The issues involved, including the issue of condonation of delay will be considered during the course of appellate proceedings emanating from e-filed appeal.

“5. We have heard both the counsel and perused the records. We find that in the present case the learned CIT(A) has not adjudicated the appeal filed before him. He has dismissed the same as un-admitted on the ground that the assessee was required file the appeal electronically. Since it was not so done the learned CIT(A) dismissed the appeal. It is the plea of the assessee that this was the first year when it was required that the appeal should be filed electronically. It is prayed that there were some technical glitches and accordingly it is prayed that the appeal should be admitted and proper order on the adjudication of the same should be given.

6. Up on careful consideration we note that the Income Tax Act in section 249 does not directly provide for electronic filing of appeal. It is provided in section 249 read with Rule 45 of the Income Tax Rules read with the Notification No. SO-637(E) dated 1.3.2016 by CBDT that electronic filing of appeal before CIT(A) is prescribed. We find that the assessee's plea is that it was the first year of the requirement of the appeal to be filed electronically and there were some technical glitches.

7. Further we note that learned CIT(A) has himself admitted in his order that electronic appeal was duly filed before the date of his appellate order.

4 Shri Ravi K. Sheth

8. Accordingly in our considered opinion the request by learned Counsel of the assessee deserves proper consideration on the facts and circumstances referred above. We note that it is settled law that in the web of hypertechnicality justice should not take a backseat. As already noted the assessee had already filed the appeal electronically, which was before learned CIT(A) before his passed his appellate order.

9. Accordingly we remit the issue to the file of learned CIT(A). Learned CIT(A) directed to consider the issues raised on merits and pass a speaking order after giving proper notice to the assessee.”

“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 1stMarch 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. 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 5 Shri Ravi K. Sheth 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 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.”

Pronounced in the open court on 28.10.2021.