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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI B. R. BASKARAN, AM &
ITO 10(2)(4) Metal Power India Pvt. Aayakar Bhavan, Ltd. बिधम/ Churchgate, Metal Power House, 87, Vs. Mumbai-400020. Marol Ind. Estate, Andheri (east), Mumbai-400059 स्थायीलेखासं./जीआइआरसं./PAN No. AACCM4835A (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri D. C. Jain, AR प्रत्यथीकीओरसे/Respondentby : Ms. N. Hemlatha, DR सुनवाईकीतारीख/ : 03.04.2018 Date of Hearing घोषणाकीतारीख / : 09.05.2018 Date of Pronouncement आदेश / O R D E R
Per Sandeep Gosain, Judicial Member:
The present two Appeals have been filed by the assessee against the order of Commissioner of Income Tax (Appeals)- 17, Mumbai, dated 31.10.17 for A.Y. 2010-11 & 2011-12 respectively.
Since the issues raised in these two appeals are identical, therefore, for the sake of convenience, these two appeals are clubbed, heard and disposed of by this consolidated order.
(AY 2010-11) 3. First of all we take up assessee’s appeal in (AY 2010-11).
As per the facts of the present case, the assessment in the above case for AY 2010-11 was completed by order u/s 143(3) r.w.s 147 of the I.T. Act, 1961 dated 08.03.2016 and was received on 11.03.2016. The appeal in the case was filed in manual form on 06.04.16. However, the filing of appeals was introduced for the first time under rule 45 of I.T. Rules 1962 mandating compulsory e-filing of appeals before appellate Commissioner with effect from 1st March 2016, since as per assessee, he was not aware at the time of filing about mandatory provision of filing of the appeal.
3 & 415/Mum/2018 Metal Power India Pvt. Ltd. Ld. CIT(A) dismissed the appeal on the solitary ground that the appeal was not e-filed before the authorities.
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 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 by Ld. AR 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.
4 & 415/Mum/2018 Metal Power India Pvt. Ltd.
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 1st March 2016. We noticed that in this respect, there is no corresponding in amended 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) r.w. section 147 of the I.T. Act 1961 vide order dated 8th March 2016. However the assessee has filed appeal before Ld. CIT(A) in paper form within the limitation as prescribed under the provisions of I.T. Act 1961. But the same was dismissed by Ld. CIT(A) by holding that assessee had not filed appeal through electric form, which is mandatory as per I.T. Rules 1962.
5 & 415/Mum/2018 Metal Power India Pvt. Ltd. After having considered the entire factual position, we find that Hon’ble Supreme Court in the case of ‘State of Punjab Vs. Shyamalal Murari 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 ‘Rani Kusum versus 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, 6 I.T.A. No. 414 & 415/Mum/2018 Metal Power India Pvt. Ltd. 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 well within the prescribed period of limitation 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 be overshadowed or negatived by such technical considerations. Since in the present case, there is no amendment in any of the provisions of the substantive law i.e. I.T. Act 1961 for e- filing of appeal. The appeal in the paper form was filed well within the prescribed period of limitation, then in that eventuality the Ld. CIT(A) ought not to have dismissed the 7 & 415/Mum/2018 Metal Power India Pvt. Ltd. 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 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 ground of appeal raised by the assessee
9. In the net result the appeal filed by the assessee is allowed.
ITA No. 415/Mum/2018 (AY 2011-12) 10. Now we take up assessee’s appeal in for AY 2011-12. Since we have already decided the similar grounds of appeal in ITA No.
8. I.T.A. No. 414 & 415/Mum/2018 Metal Power India Pvt. Ltd. 414/Mum/2018 for AY 2010-11 on merits. Therefore, following our own decision in ITA No. 414/Mum/18, we apply the same findings in the present appeal in order to maintain judicial consistency which is applicable mutatis mutandis.
In the net result, both the appeals filed by the assessee stands allowed.