ANJUMAN E-TAIYABI (USTAD) TRUST, Mumbai V. ITO-19(1)(1), Mumbai

ITA 1932/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7544 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 03-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Period of limitation; Set aside
• Section: 143(3); 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 1932 /MUM/201 9 ( / ASSESSMENT YEAR: 20 13 - 14 ) ANJUMAN E - TAIYABI (USTAD) TRUST 82, K IKA STREET GULAL WADI, MUMABI - 400004 . / VS. ITO - 19(1)(1) 82 KIKA STREET GULAL WADI, MUMBAI. ./ ./ PAN/GIR NO. : AACTA9373Q ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 16/03/2020 / DATE OF PRONOUNCEMENT : 20 /03 /2020 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT AP PEAL AGAINST THE ORDER DATED 16 . 01 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 30 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 13 - 14 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CI RCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL IN LIMINE BY ORDER DATED 16.01.2019 WITH A REQUEST TO CONDONE THE DELAY IN FILING THE SAME VIDE LETTER DATED 12.01.2019 FILED IN THE OFFICE OF THE CIT(A) ON 14.01.2019. ASSESSEE BY : SHRI S. S. PHADKAR & KALPESH TURALKAR (AR) REVENUE BY: SHRI MICHAEL JERALD (DR) ITA NO. 1932 / M/201 9 A.Y.20 13 - 14 2 2 . THE APPELLANT CRAVES, LEAVE TO ADD, ALTER, AMEND OR DELETE ANY GROUND(S) OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 3 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD . AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEE HAS FILED AN APPEAL MANUALLY BEFORE THE CIT(A) ON 22 .04.2016 WHEN THE ASSESSMENT ORDER WAS PASSED ON 23.03.2016 WELL - IN - TIME BUT THE CIT(A) HAS DISMISSED THE APPEAL ON AC COUNT OF NON - FILING THE APPEAL ELECTRONICALLY IN FORM NO.35 IN CONTRAVENTION RULE 45 OF THE I. T. RULE 1962 WHICH IS WRONG AND IS LIABLE TO BE SET ASIDE AND IN SUPPORT OF THIS CONTENTION, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIANCE UPON THE DECISION OF HONBLE ITAT MUMBAI BENCH IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS VS. ITO IN ITA. NO.7134/M/2017 DATED 04.05.2018. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. WE FIND TH AT IN THE SIMILAR FACTS AND CIRCUMSTANCES , THE HONBLE ITAT HAS GIVEN THE DECISION IN ITA. NO.7134/M/2017 DATED 04.05.2018. THE RELEVANT FINDING IS HEREBY REPRODUCED AS UNDER.: - 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED T HE 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 APPE ALS 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 I N 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 ITA NO. 1932 / M/201 9 A.Y.20 13 - 14 3 CONSIDERED THE ENTIRE FACTUAL POSITION, WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB VS.SHYA MALALMURARI 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 HONBLE SUP REME 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 HONBLE 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 HONBLE SUPREME COURT IN ITS JUDGEMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF RANIKUSUMVRS. 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 F OLLOWED. 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 HONBLE SUPREME COURT, WHEREIN THE HONBLE SUPREME COURT HAS REITERATED THAT IF IN A GIVEN CIRCUMSTANCE , THE TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THEN IN THAT EVENTUALIT Y 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 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 ) 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 APP EAL 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. ITA NO. 1932 / M/201 9 A.Y.20 13 - 14 4 4. THE FACTUAL POSITION OF THE PRESENT CASE IS QUITE SIMILAR TO THE FACTS AS NARRATED ABOVE IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS VS. ITO IN ITA. NO.7134/M/2017 DATED 04.05.2018 . IN THE INSTANT CASE, THE ASSESSEE HAS ALREADY FILED AN APPEAL BEFORE THE CIT(A) MANUALLY BUT FAILED TO FILE THE APPEAL ELECTRONICALLY IN VIEW OF THE PRO VISIONS UNDER RULE 45 OF THE I. T. RULE 1962 . TECHNICALLY FLAW CANNOT BE TREATED AS HURDLE FOR THE EXECUTION OF THE INTEREST OF JUSTICE. MOREOVER, THE CIT(A) DID NOT DECIDE THE MATTER OF CONTROVERSY ON MERITS, THEREFORE, IN THE INTEREST OF JUSTICE , W E SET ASIDE THE FINDING OF THE CIT(A) AND RESTORED THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATIS TICAL PURPOSE. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 20 /03/2020 SD/ - SD / - / - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 20 /03/2020 VIJAY PAL SINGH/SR. PS ITA NO. 1932 / M/201 9 A.Y.20 13 - 14 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //T RUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI