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Income Tax Appellate Tribunal, ‘ B’ BENCH : CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI INTURI RAMA RAO]
आदेश / O R D E R
PER INTURI RAMA RAO, ACCOUNTANT MEMBER
This is an appeal filed by the Assessee directed against the order of the Commissioner of Income Tax (Appeals)-15, Chennai (‘CIT(A)’ for short) dated 28.12.2018 for the Assessment Year (AY) 2009-2010.
The brief facts of the case are as under:
The appellant namely Sri Vasavi Gold & Bullion(P) Ltd, is a company incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of trading in gold, diamond and silver ornaments and gold bullion. The return of income for the AY 2009-10 was filed on 30.09.2009 disclosing total income of �13,76,997/-. Subsequently, the Assessing Officer reopened the assessment u/s.148 of the Act. Against the said return of income, the assessment was completed by the Dy. CIT, Corporate Circle-6(2), Chennai (hereinafter called “AO”) vide order dated 29.03.2016 of the Income Tax Act, 1961 (in short ‘the Act’) at total income of Rs. 51,03,579/-. While doing so, the AO disallowed set off and carry forward loss of �32,26,332/- and purchases of diamonds from M/s.
Navkar of �4,86,000/-.
Being aggrieved by the order of the Assessing Officer 3. assessee preferred an appeal before ld. CIT(A) manually on 25.04.2016. The ld. CIT(A) had called upon the assessee as to why the appeal cannot be treated as non-est in the eyes of law as appeal was not filed electronically as prescribed under Rule 45 of the Income Tax Rules, 1962, vide show cause notice dated 13.12.2018. However, assessee neither filed e-appeal nor replied to the notice. Hence, the ld. CIT(A) dismissed the appeal in limine.
Being aggrieved by the order of the ld. CIT(A), the appellant is in appeal before us in the present appeal. The ld. Authorised Representative submitted the appeal was filed manually within the period of limitation and the ld. CIT(A) without adjudicating the appeal on merits, dismissed the same on limine without considering the merits of the assessment.
On the other hand, the ld. Sr. Departmental Representative 5. placed reliance on the orders of lower authorities.
We heard the rival contention and perused the material on record. The appeal was filed manually within the period of limitation prescribed under the statute. No doubt Income Tax Rules prescribes that the appeal before the ld.CIT(A) should be filed electronically. It is matter of record that ld. CIT(A) had accepted the appeal, the defect was pointed out only in the year 2018. The right of appeal is an substantive right. The form of filing of appeal, procedure prescribed falls within the domain of law of procedure. The law of procedure has to be approached, understood and appreciated as a helpmate in the course of the process of administration of justice. Procedural provisions should be –so construed as to subserve the course of justice and not to hinder it. It is now well-settled that a procedural provision, ordinarily, should not be construed as mandatory, if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage. Procedural laws are devised and enacted for the purpose of advancing justice.
Reference can be made to the decision of Hon’ble Calcutta High Court in the case of CIT vs. Hardeodas Agarwalla Trust, (1992) 198 ITR 511.
In the present case, though the appeal was filed manually, ld. CIT(A) had taken cognizance of appeal memo. Therefore, we hold that ld. CIT(A) ought not have dismissed the appeal in limine without considering the merits of the assessments. In the circumstances, we remit the matter back to the file of the ld. CIT(A) for denovo adjudication after affording due opportunity of hearing to the appellant in accordance with law. Hence, appeal filed by the assessee is partly allowed for statistical purposes.
In the result, the appeal filed by the assessee is partly 7. allowed for statistical purpose.
Order pronounced on 4th day of December, 2019, at Chennai.