TERRA KO -OPERATIVE HOUSING SOCIETY LIMITED ,MUMBAI vs. INCOME TAX OFFICER-21(3)(4), MUMBAI

The present Appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)- 33, Mumbai, dated 17.10.17 for A.Y. 2013-14.

As per the facts of the present case, the assessment in the above case for AY 2013-14 was completed by order u/s 143(3) r.w.s 147 of the I.T. Act, 1961 dated 09.03.2016. The appeal in the case was filed in manual form on 29.06.16, which was delayed by 72 days. 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 1stMarch 2016, since as per assessee, he was not aware at the time of filing about mandatory provision of e-filing of the appeal. 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 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) r.w.section147 of the I.T. Act 1961 vide order dated 9th March 2016. However the assessee has filed appeal before Ld. CIT(A) in paper form 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 Terra Co-operative Housing Society 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 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,