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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Shri Girish Agrawal
Per Rajpal Yadav, Vice-President (KZ):- The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals)-2, Kolkata dated 28.11.2019 passed for the assessment year 2014-15.
The assessee has taken five grounds of appeal. However, in brief, the ld. counsel for the assessee pleaded his grievance that the assessee failed to submit its appeal electronically but filed it physically. The ld. CIT(Appeals) did not entertain this appeal filed in physical form and dismissed it in limine without adjudicating the issues on merit. He submitted that the issues be remitted to the file of the ld. 1st Appellate Authority for adjudication on merit. In support of his contentions, he relied upon the following orders of the ITAT:- (i) ITA No. 1936/Mum./2018 in the case of Umesh A. Mishra –vs.- ITO (ITAT, Mumbai order dated 19.03.2019);
(ii) in the case of All India Federation of Tax Practitioners –vs.- ITO (ITAT, Mumbai order dated 04.05.2018;
(iii) in the case of M/s. Asterix Reinforced Ltd. –vs.- ITO (ITAT, Mumbai order dated 16.05.2018).
With the assistance of the ld. representatives, we have gone through the record carefully. A perusal of the record would reveal that the assessment was passed on 16.11.2016 under section 144 of the Income Tax Act, i.e. the ex-parte assessment order according to the best judgment of the ld. Assessing Officer. This order was challenged in appeal before the ld. CIT(Appeals). Copy of the receipt dated 20.12.2016 of Form 35, grounds of appeal
and statement of facts have been filed before us. It is true that the assessee failed to file its appeal electronically and for that reason, the ld. CIT(Appeals) has dismissed the appeal without adjudicating the issues on merit. In other words, the appeal has been dismissed in limine. The ld. 1st Appellate Authority must have taken cognizance of the appeal filed by the assessee physically but did not entertain it on account of technical issues by following CBDT Circular No. 20/2016. This aspect has been considered by the Tribunal in a series of judgment as cited by the ld. counsel for the assessee before us. The Tribunal has considered this aspect in the case of All India Federation of Tax Practitioners and the discussion made by the Tribunal in reads 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 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. Shyamalal Murari 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 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”.
Respectfully following the order of the Coordinate Bench of this Tribunal, we allow this appeal of the assessee and remit all the issues to the file of the ld. CIT(Appeals) for adjudication on merit.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 06/06/2022.