Shri. Niranjan C. Jain, Bengaluru V. Income Tax Officer, Ward-7(2)(4), Bengaluru

ITA 1755/BANG/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0728 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 24-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI JT C IT BENGALURU
• Assessee Lawyers: MRINALINI
• Keywords: Opportunity of being heard; Period of limitation; Set aside
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B R BASKARAN , ACCOUNTANT MEMBER IT A NO S . 175 4 & 1755/BANG/2018 ASSESSMENT YEAR S : 2013 - 14 & 2014 - 15 SHRI NIRANJAN C. JAIN, PROP. M/S. EVERJOY PROPERTIES, 25/35, 18 TH MAIN, NEAR KIDNEY FOUNDATION, PADMANABHANAGAR, BANGALORE 560 070. PAN: COIPS 6126M VS. THE INCOME TAX OFFICER, WARD 7(2)(4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : S MT. MRI NALINI, ADVOCATE RESPO NDENT BY : SMT. R. PREMI, JT.C IT(DR)(ITAT ), BENGALURU. DATE OF HEARING : 08 .0 6 .2020 DATE OF PRONOUNCEMENT : 10 .0 6 .2020 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THESE TWO APPEALS ARE BY THE ASSESSEE AGAINST THE TWO SEPARATE ORDERS, BOTH DATED 22.03.2018 OF THE CIT(APPEALS)-V II, BENGALURU RELATING TO ASSESSMENT YEARS 2013-14 & 2014-15. ITA NOS. 1754 & 1755/BANG/2018 PAGE 2 OF 5 2. THE ASSESSEE IS AN INDIVIDUAL. HE CARRIES ON B USINESS AS BUILDERS & DEVELOPERS UNDER THE NAME AND STYLE OF M/S. EVERJOY PROPERTIES. FOR THE AYS 2013-14 & 2014-15 THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME. THE AO CONCLUDED THE ASSESSMENT PROCEEDINGS U/S. 144 OF THE INCOME-TAX ACT, 1961 [THE ACT] TO THE BEST OF HIS JUDGMENT FOR BOTH THE ASSESSMENT YEARS VIDE ASSESSMENT ORDERS DATED 28.3.2016. 3. AGAINST THE AFORESAID TWO ASSESSMENT ORDERS, THE ASSESSEE FILED TWO APPEALS BEFORE THE CIT(APPEALS). AS PER THE PROVIS IONS OF RULE 45 OF THE INCOME-TAX RULES, 1965 [THE RULES], AN APPEAL TO T HE CIT(APPEALS) SHOULD BE FILED ELECTRONICALLY W.E.F. 1.3.2016. THE ASSE SSEE, HOWEVER, FILED THE APPEALS IN PAPER FORM FOR BOTH THE ASSESSMENT YEARS ON 29.4.2016. IT IS NOT DISPUTED THAT THE DATE OF SERVICE OF ORDERS OF ASSE SSMENT DATED 28.3.2016 FOR THE AYS 2013-14 & 2014-15 WAS SERVED ON THE ASS ESSEE ONLY ON 31.3.2016, THEREFORE THE APPEAL FILED IN PAPER FORM WAS WITHIN THE PERIOD OF LIMITATION. THE CIT(APPEALS), HOWEVER, PLACING REL IANCE ON RULE 45 OF THE RULES CAME TO THE CONCLUSION THAT THE ASSESSEES AP PEALS FILED IN PAPER FORM WAS INVALID. ACCORDINGLY BOTH THE APPEALS WER E DISMISSED BY THE CIT(APPEALS) ON THE GROUND THAT THE APPEALS WERE NO T FILED ELECTRONICALLY. 4. AGGRIEVED BY THE AFORESAID ORDERS OF THE CIT(APP EALS), THE ASSESSEE HAS PREFERRED THE PRESENT APPEALS BEFORE THE TRIBUN AL. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. ON IDENTI CAL FACTS, THE ITAT MUMBAI BENCH IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS V. ITO IN ITA NO.7134/MUM/2017 FOR THE AY 2013-14 BY ITS ORDER DATED 4.5.2018 HELD AS FOLLOWS:- 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIE S 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 INTRO DUCED FOR THE ITA NOS. 1754 & 1755/BANG/2018 PAGE 3 OF 5 FIRST TIME VIDE RULE 45 OF I.T. RULES 1962, MANDATI NG COMPULSORY E-FILING OF APPEALS BEFORE APPELLATE COMMISSIONER W ITH 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 ASSESSM ENT IN THE ABOVE CASE WAS COMPLETED U/S 143(3) OF THE I.T. ACT 1961. HOWEVER THE ASSESSEE HAS FILED APPEAL BEFORE LD. CI T(A) IN PAPER FORM AS PRESCRIBED UNDER THE PROVISIONS OF I.T. ACT 1961 WITHIN THE PRESCRIBED PERIOD OF LIMITATION. BUT THE SAME W AS DISMISSED BY LD. CIT(A) BY HOLDING THAT ASSESSEE HAD NOT FILE D APPEAL THROUGH ELECTRONIC FORM, WHICH IS MANDATORY AS PER I.T. RULES 1962. AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITI ON, WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB VS. SHYAMALAL MURARI AND OTHERS REPORTED IN AIR 1976 (S C) 1177 HAS CATEGORICALLY HELD THAT COURTS SHOULD NOT GO STRICTLY BY THE RULEBOOK TO DENY JUSTICE TO THE DESERVING LITIG ANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. IT HAS BEEN REITERA TED BY THE HONBLE SUPREME COURT THAT ALL THE RULES OF PROCEDU RE ARE HANDMAID OF JUSTICE. THE LANGUAGE EMPLOYED BY THE D RAFTSMAN OF PROCEDURAL LAW MAY BE LIBERAL OR STRINGENT, BUT THE FACT REMAINS THAT THE OBJECT OF PRESCRIBING PROCEDURE IS TO ADVA NCE THE CAUSE OF JUSTICE. THE HONBLE APEX COURT HAS SAID IN AN ADVERSARIA L SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OP PORTUNITY OF PARTICIPATING IN THE PROCESS OF JUSTICE DISPENSATIO N. THE HONBLE SUPREME COURT IN ITS JUDGEMENT REPORT ED AS AIR 2005 (SC) 3304 IN THE CASE OF RANIKUSUM VRS. KANCHAN DEVI, REITERATED THAT, A PROCEDURAL LAW SHOULD NOT ORDI NARILY 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 T HAT THE ASSESSEE HAD ALREADY FILED THE APPEAL IN PAPER FORM , HOWEVER ONLY THE E-FILING OF APPEAL HAS NOT BEEN DONE BY THE ASS ESSEE AND ACCORDING TO US, THE SAME IS ONLY A TECHNICAL CONSI DERATION. IN THIS ITA NOS. 1754 & 1755/BANG/2018 PAGE 4 OF 5 RESPECT, WE RELY UPON THE JUDGEMENT OF HONBLE SUPR EME COURT, WHEREIN THE HONBLE SUPREME COURT HAS REITERATED TH AT IF IN A GIVEN CIRCUMSTANCES, THE TECHNICAL CONSIDERATION AN D SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THEN IN THAT EVENTUALITY THE CAUSE OF SUBSTANTIAL JUSTICE DESERV ES TO BE PREFERRED AND CANNOT BE OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONSIDERATIONS. APART FROM ABOVE WE HAVE ALSO NOTICED THAT THE CO ORDINATE BENCH OF HONBLE ITAT DELHI BENCH IN APPEAL ITA NO. 6595/DEL/16 IN CASE TITLED GURINDER SINGH DHILLON VRS. ITO HAD RESTORED THE MATTER TO THE FILE OF LD. CIT(A) U NDER IDENTICAL CIRCUMSTANCES WITH A DIRECTION DO DECIDE APPEAL AFR ESH 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 APPE AL SOLELY ON THE GROUND THAT THE ASSESSEE HAS NOT FILED THE APPE AL ELECTRONICALLY BEFORE THE APPELLATE COMMISSIONER. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AS WE LL AS THE CASE LAWS DISCUSSED AND RELIED UPON ABOVE, WE ARE O F THE CONSIDERED VIEW THAT THE CAUSE OF JUSTICE WOULD BE SERVED IN CASE, WE SET ASIDE THE ORDERS OF LD. CIT(A) & ALLOW THE P RESENT APPEAL. WHILE SEEKING THE COMPLIANCE, WE DIRECT THE ASSESSE E TO FILE THE APPEAL ELECTRONICALLY WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. IN CASE, THE DIRECTIONS ARE FOLLOWED TH EN IN THAT EVENTUALITY, THE DELAY IN E-FILING THE APPEAL SHALL STAND CONDONED. LD. CIT(A) IS FURTHER DIRECTED TO CONSIDER THE APPE AL FILED BY THE ASSESSEE ON MERITS BY PASSING A SPEAKING ORDER. RES ULTANTLY, WE ALLOW THE APPEAL FILED BY THE ASSESSEE. 6. WE ARE OF THE VIEW THAT THE AFORESAID DECISION A PPLIES TO THE FACTS OF THE PRESENT CASE. FOLLOWING THE AFORESAID DECISION , WE SET ASIDE THE ORDERS OF THE CIT(APPEALS) AND ALLOW THE APPEALS OF THE AS SESSEE. WE DIRECT THE ASSESSEE TO FILE THE APPEALS ELECTRONICALLY WITHIN TEN (10) DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. ON SUCH FILING OF T HE APPEALS, THE DELAY IN E- FILING THE APPEALS SHALL STAND CONDONED. THE CIT(A PPEALS) IS DIRECTED TO ITA NOS. 1754 & 1755/BANG/2018 PAGE 5 OF 5 CONSIDER THE APPEALS FILED BY THE ASSESSEE ON MERIT S, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEALS BY THE ASSESSEE ARE A LLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF JUNE, 2020. SD/- SD/- ( B R BASKARAN ) ( N V VASUDEVAN ) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE, DATED, THE 10 TH JUNE, 2020. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.