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Income Tax Appellate Tribunal, ‘C’ BENCH: CHENNAI
Before: SHRI GEORGE MATHAN & SHRI INTURI RAMA RAO
: Shri Saraj Kumar Parida, Adv. अपीलाथ" क" ओर से/ Appellant by : Shri R. Clement Ramesh ""यथ" क" ओर से /Respondent by Kumar, Addl. CIT : 05.08.2019 सुनवाई क" तार"ख/Date of Hearing : 31.10.2019 घोषणा क" तार"ख /Date of Pronouncement 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 learned Commissioner of Income Tax (Appeals)-15, Chennai (hereinafter called as ‘CIT(A)’) dated 30.01.2019 for the assessment year 2013-14. :- 2 -:
The appellant is a company incorporated under the provisions of Companies Act, 1956. It is engaged in the business of Real Estate. The return of income for the AY 2013-14 was filed on 30.09.2013 disclosing total income of Rs. 1,57,91,330/-. Against the said return of income, the assessment as completed by the Dy. Commissioner of Income Tax, Corporate Circle-6(1), Chennai (hereinafter called “AO”) at total income of 3,32,91,330/-. While doing so, the AO disallowed the claim of deduction u/s. 35(1)(ii) of the Income Tax Act, 1961 (in short ‘the Act’) being the contribution of Rs. 1,75,00,000/- made to Herblcure Health Care Bio Research Foundation, Kolkata on the ground that it is a bogus donation based on the information received from the Investigation Wing of the Department, Kolkata.
Being aggrieved by the order of the Assessing Officer assessee preferred an appeal before ld. CIT(A) manually on 12.04.2016. 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 19.12.2018. Despite this, the appeal was not filed in electronic form. Accordingly, the ld. CIT(A) dismissed the appeal in limine. :- 3 -:
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 based on the show cause notice dated 19.12.2018, assessee had filed the appeal electronically on 03.01.2019. 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 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 and immediately, thereafter assessee had field appeal electronically in terms of Rule 45. 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 :- 4 -:
–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, when required by ld. CIT(A) to file appeal electronically, it was duly complied with by the assessee. Therefore, appeal relates back to the date of filing of appeal manually. Thus, there was no delay in filing the appeal before the ld. CIT(A). 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. :- 5 -:
In the result, the appeal filed by the assessee is partly allowed for statistical purpose.
Order pronounced in the open Court on 31st October, 2019 in Chennai. (जॉज" माथन) (इंटूर" रामा राव) (GEORGE MATHAN) (INTURI RAMA RAO) "या"यक सद"य/JUDICIAL MEMBER लेखा सद"य/ACCOUNTANT MEMBER