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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai
This appeal by the assessee is directed against the order of learned Commissioner of Income Tax (Appeals) [in short CIT(A)] dated 31.1.2009 pertains to A.Y. 2013-14.
The grounds of appeal read as under :- 1. a) The Learned Commissioner of Income Tax (Appeals) -20 has erred in law and facts on records dismissing the appeal on technical ground of the appeal have not been verified by the director, whereas the appeal has been digitally signed by the Managing director but the e-filing utility has allowed the appeal have been filed without prompting non filling of name of the director in verification column but the profile of the company in the e-filing website do include the name of managing director which the same person who signed the appeal. b) The appellant submit that if at all any technical defect have been noticed in filing the appeal before the CIT (A), it have not been provided any opportunity to rectify the defect , apparent from records.
Brief facts of the case are that pursuant to the assessment order passed by the Assessing Officer, the assessee which is a company filed appeal before learned CIT(A) . The learned CIT(A) dismissed the appeal on technical ground 2 M/s. Aswathi Industries Ltd.
that From No. 35 has been verified and digitally signed by the Aswathi Industries Ltd. instead of Managing director or another director authorised in this regard. In this regard he referred to section 140 of the I.T. Act and Rule 45 of the I.T. Rules.
Against this order assessee is in appeal before the ITAT.
I have heard learned Departmental Representative and perused the records. I find that electronic filing of appeal is a new phenomenon. Though section 249 which deals with form of appeals does not specifically provides for electronic filing of appeal, rule 45 of Income Tax Rules provides for the same from 2016. The said Rule 45 reads as under : Rule 45. (1) An appeal to the Commissioner (Appeals) shall be made in Form No. 35. (2) Form No. 35 shall be furnished in the following manner, namely:— (a) in the case of a person who is required to furnish return of income electronically under sub- rule (3) of rule 12,— (i) by furnishing the form electronically under digital signature, if the return of income is furnished under digital signature; (ii) by furnishing the form electronically through electronic verification code in a case not covered under sub-clause (i); (b) in a case where the assessee has the option to furnish the return of income in paper form, by furnishing the form electronically in accordance with clause (a) of sub-rule(2) or in paper form. (3) The form of appeal referred to in sub-rule (1), shall be verified by the person who is authorised to verify the return of income under section 140 of the Act, as applicable to the assessee. (4) Any document accompanying Form No. 35 shall be furnished in the manner in which the said form is furnished. (5) The Principal Director General of Income-tax (Systems) or the Director General of Income-tax (Systems), as the case may be, shall— (i) specify the procedure for electronic filing of Form No.35 and documents; (ii) specify the data structure, standards and manner of generation of electronic verification code, referred to in sub-rule(2), for the purpose of verification of the person furnishing the said form; and (iii) be responsible for formulating and implementing appropriate security, archival and retrieval of policies in relation to the said form so furnished.]
3 M/s. Aswathi Industries Ltd.
I note that some glitches are inevitable in the initial period. The assessee’s grievance in the grounds of appeal is reasonable. The learned CIT(A) has adopted a hyper technical approach, which is not proper in a quasi judicial proceeding. He has not even given an opportunity to the assessee to rectify the mistake. There is nothing in the statute which provides that this mistake by the assessee is fatal or not curable. Moreover it is settled law that when hyper technicality is pitted against substantial interest of justice, it is the later that prevails.
6. Moreover to put the matter in proper perspective learned CIT(A) is not technically perfect in objecting to the return being digitally signed as it is. As sub-rule 3 of the Rule 12 of the I.T. Rules specifies, in the case of a company, the manner of furnishing return of income as “electronically under digital signature”. The above term has not been elaborated to be managing director or other director in the said rule 12 itself. Although section 140 in the terms of verification provides for the same. So if the assessee has done a mistake the same can be attributed to a reasonable cause.
7. Be as it may as I have already noted above technicalities should not be an impediment in rendering substantial justice by a quasi judicial authority. Accordingly, I set aside the issue to the file of learned CIT(A). The learned CIT(A) shall follow the observation as aforesaid.
In the result, the assessee’s appeal is allowed for statistical purposes.
Order pronounced under Rule 34(4) of the ITAT Rules on 6.10.2020.