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Income Tax Appellate Tribunal, MUMBAI BENCHES “C”, MUMBAI
Before: SHRI B.R. BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
आदेश / O R D E R PER BENCH, These appeals have been filed by the assessee against the seven orders dated 16.03.2018 passed by the Ld. Commissioner of Income Tax (Appeals)-60, Mumbai, pertaining to the assessment years 2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 and 2015-16, whereby the Ld. CIT (A) has dismissed all the appeals filed by the assessee against assessment orders passed u/s 201(1)/201(1A) of the Income Tax Act, 1961 (for short ‘the Act’). Since, these appeals pertain to the same assessee and the issues involved are identical, the same were clubbed, heard together and are being disposed of by this common and consolidated order for the sake of convenience.
Brief facts of the case are that the assessee manually filed seven appeals before the Commissioner of Income Tax (Appeals)-Mumbai against the seven orders dated 16.03.2018 passed by the AO u/s 201 (1)/201(IA) of the Act pertaining to the Assessment Years 2009-10 to 2015-16, on 13.04.2016. The Ld. CIT (A) noted that these appeals were manually filed contrary to the Notification No. S.O. 637 (E) dated March 01, 2016 issued by the CBDT in exercise of powers conferred by section 249(1) read with section 295 of the Act mandating compulsory electronic filing of appeals before Appellate Commissioner w.e.f. 1st. March, 2016 for those required to furnish their return of income electronically. The Ld. CIT (A) asked the assessee to explain as to why the said appeals should not be treated as invalid. The authorized representative (AR) stated that these appeals were filed manually as he was not aware of the recently introduced provisions.
The Ld. CIT (A) rejected the contention of the assessee and dismissed all the appeals aforesaid in limine holding the same as not maintainable. Against the impugned order, the assessee is in appeal before the Tribunal.
4146/MUM/2018 Assessment Years: 2009-10 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 & 2015-16
The assessee has challenged the impugned order on the following effective grounds:-. 1. “The Ld. CIT (A) has erred in law and on the facts of the case in dismissing the appeal on technical ground i.e. for not filing an appeal electronically. The appeal was filed manually within 30 days from the date of the receipt of the order. The action is unjustified and unwarranted.
2. The Ld. CIT (A) has erred in law and on the facts of the case in treating the assessee company as assessee in default within the meaning of Sec. 201 (1) of the Act. The action is unjustified and unwarranted and against the provisions of law.
3. The Ld. CIT (A) has erred in law and on the facts of the case in confirming the action of Assessing Officer in determining demand of Rs. 29,66,079 payable by your petitioner for non deduction of tax on various expenses.
The action is unjustified and unwarranted and apparently incorrect.
4. The Ld. CIT (A) has erred in law and on the facts of the case in confirming the action of Assessing Officer in charging TDS @ 2% u/s 194(c) of the Act on entire purchase of materials amounting to Rs. 30,50,17,499/-. The action is unjustified and unwarranted.
5. The Ld. CIT (A) has erred in law and on the facts of the case in confirming the action of Assessing Officer case in charging Interest u/s 201(1A) of Rs. 58,56,336/- on late payment of TDS charged on purchase of material for period April 2008 to March 2016.”
4146/MUM/2018 Assessment Years: 2009-10 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 & 2015-16
At the outset, the Ld. counsel for the assessee submitted that the SMC Bench of ITAT Mumbai has decided the identical issue in favour of the assessee in All India Federation of Tax Practitioners Vs. ITO, ITA No 7134/Mum/2017 by setting aside the impugned order passed by the Ld. CIT (A) in an identical matter. In view of the said decision, the impugned order passed by the Ld. CIT(A) may to be set aside.
On the other hand, the Ld. Departmental Representative (DR) relying on the findings of the Ld. CIT (A) submitted that since the assessee has filed the appeals in question manually a contrary to the notification issued by the CBDT, there is no merit in the appeal of the assessee.
We have heard the rival submissions and also perused the material on record. The coordinate Bench has decided an identical issue in favour of the assessee in the case of All India Federation of Tax Practitioners Vs. ITO (supra) holding 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 1st March 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 4146/MUM/2018 Assessment Years: 2009-10 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 & 2015-16 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 judgment 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 judgment 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 4146/MUM/2018 Assessment Years: 2009-10 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 & 2015-16 preferred and cannot be overshadowed or negativated 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.”
In the instant case, the Ld. counsel for the assessee submitted that appeals were filed manually on 13.04.2016 and electronically on 19.01.2018.
Since, the coordinate Bench has dealt with the identical issue and decided the same in favour of the assessee in the case of All India Federation of Tax Practitioners Vs. ITO (supra) and set aside the findings of the Ld. CIT (A), we respectfully follow the decision of the coordinate Bench passed in the appeal, 4146/MUM/2018 Assessment Years: 2009-10 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 & 2015-16 (supra) and set aside the impugned orders passed by the Ld. CIT(A). Since the assessee claims to have filed the appeals electronically, subject to verification, we condone the delay in filing appeals electronically. Accordingly, we allow the appeals of the assessee pertaining to the assessment years 2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 and 2015-16 filed by the assessee and restore the issue to the file of the Ld CIT(A) for adjudicating the same on merits in all the years under consideration. In the result, appeals filed by the assessee for assessment years 2009-10, 2010-11, 2011-12 2012-13, 2013-14, 2014-15 and 2015-16 are allowed.
Order pronounced in the open court on 20th. July, 2018.