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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI S.S. Viswanethra Ravi, JM & DR. A.L.SAINI, AM
Appellant by : Shri Rajaram Chowdhary,&SusilKr.Roy ld.AR Revenue by : Shri S. C. Mohanty, ld. Sr.DR सुनवाईक�तार�ख/ Date of Hearing : 13/12/2018 घोषणाक�तार�ख/Date of Pronouncement :19/12/2018 आदेश / O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned three appeals filed by the different assessees, pertaining to assessment years 2012-13,2013-14& 2015-16, are directed against the separateorders passed by ld. Commissioner of Income Tax (Appeals), Kolkata, which in turn arise out of separateorders passed by the Assessing Officer u/s. 143(3) of the Income-Tax Act, 1961 (in short, ‘the Act’).
2.Since, the issues involved in all the appeals are common and identical; therefore, these appeals have been heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in Year 2012-13, have been taken into consideration for deciding the above appeals en masse.
3.The assessee’s appeal in A.Y 2012-13 in the case of Lakshmi Maity, is taken as a lead case. The grounds of appeal raised by the assesse read as follows:-
1. That on the facts and circumstances of the case, the order under section 250 dated 30.05.2018 passed by CIT(A)-09, Kolkata, being erroneous, unlawful and without considering facts on records properly, be cancelled and set aside.
2. That on the facts and circumstances of the case, the assessing officer erred in law inpassing the order appealed against in assessing total Income of Rs.13,63,240/- and the Appellate Authority treating the appeal filed non-est, without providing natural justice.
3. That on the facts and circumstances of the case, the assessing officer erred in law in passing the order appealed against in addition of Rs.l,16,682/- on account of mismatch of income as per 26AS and profit & loss A/c and the Appellate Authority treating the appeal filed non-est. without providing natural justice.
4. The Assessee craves leave to make additional ground/modify/alter the ground at the time of hearing.
4. The brief facts qua the issue are that in the assessee’s case under consideration, the assessment was re-opened u/s. 147/148 of the Act. Accordingly, notice u/s. 148 of the Act was issued on the assesse. The assesse filed his return of income electronically on 28-04-2016, declaring total income of Rs. 12,46,560/- as per original return against notice u/s148 of the Act. Theassessment was completed by AO u/s. 143(3)/147 of the Act by making the addition of Rs.1,16,682/- on account of difference in turnover.
5. Aggrieved by the stand so taken by the AO the assessee carried the matter in appeal before the ld. CIT(A), who dismissed the appeal of the assessee by observing the followings:-
“Rule 45 of the Income Tax Rules, 1962, mandates compulsory e filing of appeals before Commissioner of Income Tax (Appeals) with effect from 01/03/2016 in respect of persons who are required to furnish return of income electronically. Vide Circular No. 20/2016 dated 26/05/2016 issued vide F.No. 279/Misc/M- 54/2016/ITJ, the time limit for compulsorily e-filing of appeals was extended till 15/06/2016, beyond which the appeals before Commissioner of Income Tax (Appeals) are to be filed mandatorily bye-filing mode in respect of persons who are required to furnish return of income electronically. It is seen that appellant has not filed appeal electronically and has only filed it manually. The appeal filed is thus non-est and cannot be acted upon and is therefore treated as dismissed.”
6. Aggrieved by the impugned orders of the ld. CIT(A),all the respective assessees ( on the same grounds)are in appeal before us.
7. The ld. Counsel for the assessee submitted before us that the assesseecould not file an appeal before the ld. CIT(A) electronically,therefore, the ld. CIT(A) dismissed the appeal of the assessee treating it as non-est in the eye of law. However, assessee filed his appeal before the ld. CIT(A) manually.The assessee has merit in his case but the ld. CIT(A) dismissed the appeal of the assessee on technical ground. Therefore, the ld. Counsel for the assesse prayed before the Bench that the matter should be restored to the file of the ld. CIT(A) to adjudicate the issue on merits.
On the other hand, the ld. DR for the revenue has submitted before the 8. Bench that “ignorance of law is no excuse” and assessee has to file the appeal electronically before the Ld CIT(A). Since, the assessee failed to file the appeal before ld CIT(A) electronically, therefore, assessee should first of all, pray for condonation of delay, before the ld CIT(A) otherwise the assessee`s appeal should be dismissed.
We have given a careful consideration to the rival submissions and perused the material available on record. We note that this is initial years where Rule 45 of the Income Tax Rules, 1962, mandates compulsory e filing of appeals before Commissioner of Income Tax (Appeals) with effect from 01/03/2016 in respect of persons who are required to furnish return of income electronically. Vide Circular No. 20/2016 dated 26/05/2016 issued vide F.No. 279/Misc/M-54/2016/ITJ, the time limit for compulsorily e-filing of appeals was extended till 15/06/2016, beyond which the appeals before Commissioner of Income Tax (Appeals) are to be filed mandatorily by e-filing mode in respect of persons who are required to furnish return of income electronically. Normally, when a new system is introduced, it is a general phenomenon that it takes time to understand that new system and also it takes time to become accustomed to use the new system. The new system was introduced with effect from 15/06/2016, and assessee filed an appeal manually on 25.08.2016 before the ld CIT(A) therefore, considering the fact that this is the initial year of introduction of e-filing of appeal and there was no general awareness among the assessees therefore, the said technical ground taken by the ld CIT(A) should be condoned and the appeal of the assessee must be admitted on merits.
The assessee submitted before us an affidavit stating that his appeal could not be uploaded, as the site of the Income Tax Department was not working properly. We note that substantial justice should not be denied because of thesetechnical reasons. For that we rely on the order dated 04-05-2018 of the Co-ordinate Bench, ITAT, Mumbai Benches, in Appeal in the A.Y 2013-14, in the case of All India Federation of Tax Practitioners Vs. ITO(E), wherein the facts narrated and the judgment delivered by the Co-ordinate Bench are given below for ready reference:-
“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.
As per the facts of the present case, the assessee is a trust registered with DIT (E ), Mumbai u/s 12A and with Charity Commissioner, Mumbai. The assessee filed its return of income on 29.09.11 alongwith the income and expenditure account, balance sheet and audit report in form 10B declaring total income at Rs. 1,81,777/-. Thereafter, assessment for AY 2013-14 was completed by order u/s 143(3) of the I.T. Act on 17.02.16 at taxable income of Rs.14,22,664/-.
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.
Now before us Ld. AR has challenged the order of Ld. CIT(A) in not allowing hearing of appeal filed by the assessee merely on the basis of alleged default of not having filed electronically.
Ld. AR reiterated the same arguments as were raised before Ld. CIT(A) and submitted even though the appeal was filed in paper form and under the relevant provisions of I.T. Act 1961, but the Ld. CIT(A) has erred in not allowing hearing of appeal filed by the assessee merely on the basis of alleged default of not having filed electronically. Ld. AR further submitted that Ld. CIT(A) ought to have taken into account that the alleged compliance defaults were of a technical nature and being introduced for the first time in the statute books, ought to have considered legally and heard the appeal on merits. It was further submitted that Ld. CIT(A) has erred in denying an opportunity of appeal to deserving appellant and thus resulted in denial of opportunity of Justice in the deserving case.
On the other hand Ld. DR appearing on behalf of the Department supported the orders passed by the revenue authorities.
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 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 5 & 1638/Kol/2018 S/Sh. Lakshimi Maity, Animesh Bar & Susil Kr. Roy 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 circumstances, the technical consideration and substantial Justice are pitted against each other, then in that eventuality the causeof substantial Justice deserves to be preferredand 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.
In the net result the appeal filed by the assessee is allowed.”
Considering the ratio laid down by the Co-ordinate Bench of ITAT Mumbai Benches, in the case of All India Federation of Tax Practioners (supra), we note that the assessee had already filed the appeal in paper form, however, the e-filing of appeal has not been done by electronic mode, the same is only a technical consideration. We note 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 be overshadowed by such technical considerations. Therefore, we set aside the impugned orders of the ld. CIT(A) and direct the ld CIT(A) to condone the delay in filing appeal in case of these three assessees. We direct the assessees to file appeal electronically within 10 days from the date of receipt of this order, if the assessee fails to file the appeal electronically before the ld CIT(A), within 10 days from the receipt of this order, then in that eventuality, our this, order would be vacated.
Grounds raised by the respective assesse are allowed.
Order pronounced in the open court on this 19/12/2018.