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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI RAJESH KUMAR, AM & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 16.01.2019 passed by the Commissioner of Income Tax (Appeals) -30, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2013- 14.
The assessee has raised the following grounds: - “1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in dismissing the appeal in limine by order dated 16.01.2019 with a request to condone the delay in filing the same vide letter dated 12.01.2019 filed in the office of the CIT(A) on 14.01.2019.
ITA No. 1932/M/2019 A.Y.2013-14 2. The appellant craves, leave to add, alter, amend or delete any ground(s) of appeal either before or during the course of hearing of the appeal.”
We have heard the argument advanced by the Ld. Representative of the parties and perused the record. At the very outset, the Ld. Representative of the assessee has argued that the assessee has filed an appeal manually before the CIT(A) on 22.04.2016 when the assessment order was passed on 23.03.2016 well-in-time but the CIT(A) has dismissed the appeal on account of non-filing the appeal electronically in Form No.35 in contravention Rule 45 of the I. T. Rule 1962 which is wrong and is liable to be set aside and in support of this contention, the Ld. Representative of the assessee has placed reliance upon the decision of Hon’ble ITAT Mumbai Bench in the case of All India Federation of Tax Practitioners Vs. ITO in dated 04.05.2018. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. We find that in the similar facts and circumstances, the Hon’ble ITAT has given the decision in ITA. No.7134/M/2017 dated 04.05.2018. The relevant finding is hereby reproduced 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 ITA No. 1932/M/2019 A.Y.2013-14 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 circumstance, 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.”