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Income Tax Appellate Tribunal, “C” BENCH : BANGALORE
Before: SHRI N.V. VASUDEVAN & SHRI B R BASKARAN
O R D E R Per N.V. Vasudevan, Vice President These two appeals are by the assessee against the two separate orders, both dated 22.03.2018 of the CIT(Appeals)-VII, Bengaluru relating to assessment years 2013-14 & 2014-15.
The assessee is an individual. He carries on business as builders & developers under the name and style of M/s. Everjoy Properties. For the AYs 2013-14 & 2014-15 the assessee did not file any return of income. The AO concluded the assessment proceedings u/s. 144 of the Income-tax Act, 1961 [the Act] to the best of his judgment for both the assessment years vide assessment orders dated 28.3.2016.
Against the aforesaid two assessment orders, the assessee filed two appeals before the CIT(Appeals). As per the provisions of Rule 45 of the Income-tax Rules, 1965 [the Rules], an appeal to the CIT(Appeals) should be filed electronically w.e.f. 1.3.2016. The assessee, however, filed the appeals in paper form for both the assessment years on 29.4.2016. It is not disputed that the date of service of orders of assessment dated 28.3.2016 for the AYs 2013-14 & 2014-15 was served on the assessee only on 31.3.2016, therefore the appeal filed in paper form was within the period of limitation. The CIT(Appeals), however, placing reliance on Rule 45 of the Rules came to the conclusion that the assessee’s appeals filed in paper form was invalid. Accordingly both the appeals were dismissed by the CIT(Appeals) on the ground that the appeals were not filed electronically.
Aggrieved by the aforesaid orders of the CIT(Appeals), the assessee has preferred the present appeals before the Tribunal.
We have heard the rival submissions. On identical facts, the ITAT Mumbai Bench in the case of All India Federation of Tax Practitioners v. ITO in for the AY 2013-14 by its order dated 4.5.2018 held as follows:-
“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 ‘RaniKusum Vrs. 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.”
We are of the view that the aforesaid decision applies to the facts of the present case. Following the aforesaid decision, we set aside the orders of the CIT(Appeals) and allow the appeals of the assessee. We direct the assessee to file the appeals electronically within Ten (10) days from the date of receipt of this order. On such filing of the appeals, the delay in e- filing the appeals shall stand condoned. The CIT(Appeals) is directed to consider the appeals filed by the assessee on merits, after affording opportunity of being heard to the assessee.
In the result, the appeals by the assessee are allowed.
Pronounced in the open court on this 10th day of June, 2020.