MR.ASHOK PARTHASARATHY SREENIVASA,MUMBAI vs. ACIT-29(1), MUMBAI

आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 28/03/2018 of the Ld. First Appellate Authority, Mumbai, dismissing the appeal of the assessee, which was manually filed on 14/03/2016, declaring the same as invalid ab initio for the sole reason that from 1st March, 2016, the assessee was required to file the return electronically.

Shri Ashok Parthasarthy Sreenivas order by contending that from 1st March, 2016, the assessees are required to file their appeals electronically, therefore, there is procedural defect, consequent, the impugned order is correct. However, the Ld. DR did not contradict the factual matrix that the issue in hand is covered by the aforesaid decision of the Tribunal, relied upon by the ld. counsel for the assessee.

2.1. We have considered the rival submissions and perused the material available on record. In view of the above background, we are reproducing hereunder the decision of the Tribunal in the case of All India Federation of Tax Practitioners vs Income Tax Officer (ITA No.7134/Mum/2017) order dated 04/05/2018 for ready reference and analysis:-

“The present Appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-1, Mumbai, dated 15.09.17 for A.Y. 2013-14.

Shri Ashok Parthasarthy Sreenivas Aggrieved by the order of AO, the assessee preferred appeal before Ld. CIT(A) and the Ld. CIT(A) noticed that rule 45 of I.T. Rules 1962 mandating compulsory e-filing of appeals before CIT(A) with effect from 1st March 2016, therefore Ld. CIT(A) dismissed the appeal in limini by holding that mandatory requirement of e-filing of appeal have not been fulfilled by the assessee. Therefore the appeal filed manually was not treated as valid appeal and hence the same was dismissed. Aggrieved by the order of Ld. CIT(A), the assessee has preferred the present appeal before us.

Shri Ashok Parthasarthy Sreenivas 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.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 Shri Ashok Parthasarthy Sreenivas 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 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 Shri Ashok Parthasarthy Sreenivas appeal filed by the assessee on merits by passing a speaking order. Resultantly, we allow the appeal filed by the assessee. 7. In the net result the appeal filed by the assessee is allowed.” 2.2. We have perused the aforesaid order and also the decision from Delhi Bench of the Tribunal in the case of Shri Jagbir Singh Sharma vs ACIT (ITA No.809/Del/2017) order dated 05/06/2017. The Mumbai Bench of the Tribunal in a later decision dated 04/05/2018 has duly considered rule-45 of I.T. Rules, 1962, mandating compulsorily e-filing of appeals before the Ld. Commissioner of Income Tax (Appeal) w.e.f. 01st March, 2016, the decision from Hon'ble Apex Court in the case of State of Punjab vs Shaymlal Murari & Ors.

(AIR) (1976)(Supreme Court)1177, Ranikusum vs Kanchan Devi (AIR)(2005)(Supreme Court)3304, Gurinder Singh Dhillon vs Income Tax Officer (ITA No.6595/Del/2016), which are squarely applicable to the facts of the present assessee, because the Ld. Commissioner of Income Tax (Appeal) dismissed the appeal of the assessee in view of notification number S.O.637(E) dated 01st March, 2016, issued by CBDT amending rule-45 of the Income Tax Rules-1962, thus, considering the totality of facts and the aforesaid decisions,

Shri Ashok Parthasarthy Sreenivas we direct the Ld. Commissioner of Income Tax (Appeal) to adjudicate the appeal of the assessee afresh on merit. The assessee be given opportunity of being heard with further liberty to furnish necessary evidence, if any, in support of his claim. The delay in e-filing the appeal is condoned and liberty is granted to the assessee to e-file the appeal before the Ld. Commissioner of Income Tax (Appeal) within 10 days from the receipt of this order. Thus, the appeal of the assessee is allowed for statistical purposes only.

Finally, the appeal of the assessee is allowed for statistical purposes.

This order was pronounced in the open court in the presence of ld. representative from both sides at the conclusion of the hearing on 06/08/2018.