MANDIR SHREE AMRIT RAGHUNATHJI,JAIPUR vs. ITO, I.T.O. (EXEMPTION) JAIPUR

ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 26-09-2022, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2010-11 wherein the assessee has raised the following grounds of appeal. ‘’1. While agreeing and admitting the appeal within time allowed under law against order u/s 154 of I.T. Act, the ld CIT(A) was not justified in dismissing the same (for statistical purposes) and that too after more than six years of filing for the reason that the appeal was submitted in hard copy (raising same 2 ITA 407/JP/2022 MANDIR SHREE AMRIT RAGHUNATHJI VS ITO, (EXEMPTION), JAIPUR grounds of appeal) and not electronically, thereby denying the benefit under second proviso to Section 12A(2) of I.T. Act by charging tax at maximum marginal rate on surplus.

2.1 Apropos Ground No. 1 and 2 of the assessee, the facts as emerges from the order of the ld. CIT(A) are as under:- ‘’4. It is seen that the appeal has not been filed electronically by the appellant. As per record, the appeal has been filed manually on 09-08-2016 in Form No.

3 ITA 407/JP/2022 MANDIR SHREE AMRIT RAGHUNATHJI VS ITO, (EXEMPTION), JAIPUR 5. In the result, the appeal of the appellant is treated as dismissed for statistical purpose.

2.2 During the course of hearing, the ld. AR of the assesssee has prayed that the ld. CIT(A) has denied the benefit u/s 12A(2) of the Act and consequently dismissed the appeal on the ground that the assessee has not filed the appeal electronically. 2.3 On the other hand, the ld. DR supported the order of the ld.CIT(A). 2.4 The Bench has heard both the parties and perused the materials available on record. The crux of the issue is that the assessee has filed the appeal manually but simultaneously not filed the appeal electronically. Hence, ld. CIT(A) treated the manual appeal filed by the assessee non est and dismissed the same. The Bench noted that similar type of issue was considered by the ITAT Mumbai Bench in the case of All India Federation of Tax Practitioners vs ITO (E)-1)2_, Mumbai in vide order dated 4-5-2018 wherein the Bench has restored the matter back to the file of ld. CIT(A) by 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 Income Tax Rules 1962, mandating compulsory e-filing of appeals before appellate Commissioner with effect from 1-3-2016. We noticed that in this respect, there is no corresponding amendment in any of the provisions of the substantive law i.e. Income Tax Act, 1961. As per the facts of the present case, the assessment in the above case was completed under section 143(3) of the Income Tax Act 1961. However the assessee has filed appeal before learned Commissioner (Appeals) in paper form as 4 ITA 407/JP/2022 MANDIR SHREE AMRIT RAGHUNATHJI VS ITO, (EXEMPTION), JAIPUR prescribed under the provisions of Income Tax Act 1961 within the prescribed period of limitation. But the same was dismissed by learned Commissioner (Appeals) by holding that assessee had not filed appeal through electronic form, which is mandatory as per Income Tax Rules 1962. After having considered the entire factual position, we find that Hon’ble Supreme Court in the case of ‘State of Punjab v. Shyamalal Murari & Ors. 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 ‘Rani Kusum v. 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 preferred and 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 v. ITO had restored the matter to the file of learned Commissioner (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 learned Commissioner (Appeals), therefore in that eventuality the learned Commissioner (Appeals) 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 learned Commissioner (Appeals) & allow the present appeal. While seeking the compliance, we direct 5 ITA 407/JP/2022 MANDIR SHREE AMRIT RAGHUNATHJI VS ITO, (EXEMPTION), JAIPUR 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. Learned Commissioner (Appeals) 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 view of the above decision of ITAT Mumbai Bench in the case of All India Federation of Tax Practitioners vs ITO (supra), assessee is directed to file the appeal electronically before the ld. CIT(A) who will pass the afresh speaking order on merit. Thus the appeal of the assessee is allowed for statistical purposes. 3.0 In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 27/02/2023.