BIPIN JAKHARIA, MUMBAI V. INCOME TAX OFFICER-29(1)(2), MUMBAI

ITA 2558/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1437 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 25-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S SHARMA
• Assessee Lawyers: DHARAN V GANDHI
• Keywords: Period of limitation; Set aside

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SHRI SANDEEP GOSAIN, JM & HONBLE SHRI RAJESH KUMAR, AM ./ I.T.A. NO . 2558/MUM/2018 ( / ASSESSMENT YEAR: 2011 - 12 ) BIPIN JAKHARIA, 4, AMBE SMRUTI, DEVIDAYAL , STREET, MULUND (WEST), MUMBAI - 40008 0 / VS. ITO - 29(2 ) (2), C - 10, R. NO. 103, 1 ST FLOOR, PRATYAKSHAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST) MUMBAI - 400051 . ./ ./ PAN NO. AA CPJ9375R ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI DHARAN V. GANDHI, AR / RESPONDENTBY : SHRI C. S. SHARMA , DR / DATE OF HEARING : 08.05 .201 9 / DATE OF PRONOUNCEMENT : 14.05.2019 2 I.T.A. NO. 2558 /MUM/201 8 BIPIN JAKHARIA , / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 39, MUMBAI, DATED 28.03.18 FOR A.Y. 20 11 - 12 . 2. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS FILED RETURN OF INCOME ON 23.09.11 DECLARING TOTAL INCOME OF RS. 2,25,541/ - . SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND AFTER SERVING STATUTORY NOTICES AND PROVIDING OPPORTUNITY OF HEARING, ASSESSMENT U/S 144(3) WAS COMPLETED BY THE AO THERE BY MAKING ADDITIONS. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND THE LD. CIT(A) NOTICED THAT RULE 45 OF I.T. RULES 1962 MANDATING COMPULSORY E - FILING OF APPEALS BEFORE CIT(A) WITH EFFECT FROM 1 ST MAR CH 2016, THEREFOR E LD. CIT(A) DISMISSED THE APPEAL IN LIMINI BY HOLDING THAT MANDATORY REQUIREMENT OF E - FILING OF APPEAL HAVE 3 I.T.A. NO. 2558 /MUM/201 8 BIPIN JAKHARIA , NOT BEEN FULFILLED BY THE ASSESSEE. THEREFORE THE APPEAL FILED MANUALLY WAS NOT TREATED AS VALID APPEAL AND HENCE THE SAME WAS DISMISSED. AGGRIEV ED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE US. 3 . 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. 4 . 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 UN DER THE RELEVANT PROVISIONS OF I.T. ACT 1 961 , 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 COMP LIANCE DEFAULTS WERE OF A TECHNICAL NATURE AND BEING INTRODUCED FOR THE FIRST TIME IN THE STATUTE 4 I.T.A. NO. 2558 /MUM/201 8 BIPIN JAKHARIA , BOOK S, 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. 5 . ON THE OTHER HAN D LD. DR APPEARING ON BEHALF OF THE DEPARTMENT SUPPORTED THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 6 . WE HAVE HEARD THE COUNSELS F OR 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 INT RODUCED FOR THE FIRST TIME VIDE RULE 45 OF I.T. RUL ES 1962 , MANDATING COMPULSORY E - FILING OF APPEALS BEFORE APPELLATE COMMISSIONER WITH EFFECT FROM 1 ST MARCH 2016. WE NOTICED THAT IN THIS RESPECT, THE RE IS NO CORRESPONDING AMENDMENT IN ANY OF THE PROVISIONS OF THE SUBSTANTIVE LAW I.E I.T. ACT, 1961 . 5 I.T.A. NO. 2558 /MUM/201 8 BIPIN JAKHARIA , AS PER THE FACTS OF THE PRESENT CASE , THE ASSESSMENT IN TH E ABOVE CASE WAS COMPLETED U /S 143 (3) OF THE I.T. A CT 1961 . H OWEVER 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 N OT FILED APPEAL THROUGH ELECTRONIC FORM, WHICH IS MANDATORY AS PER I.T. RULES 1962. AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION, W E FIND THAT H ON BLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB VS. SHYAMALA LMURARI AND OTHERS REPORTED IN AI R 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 H ON BLE SUPREME COURT THAT ALL THE RULES OF PROCEDURE ARE HANDMA I D OF JUSTICE. THE LANGUAGE EMPLOYED BY THE DRAF TSMAN 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. 6 I.T.A. NO. 2558 /MUM/201 8 BIPIN JAKHARIA , THE HO N BLE APEX C OURT HAS SAID IN AN ADVERSARIAL SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY OF PARTICIPATING IN THE PROCESS OF JUSTICE DISPENSATION. THE H ON BLE SUPREME COURT IN ITS JUDGEMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF R ANI 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 JUSTIC E. ANY I NTERPRETATION, WHICH EL UDES 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 JUDGEMENT OF HONBLE SUPREME COURT, WHEREIN THE HONBLE SU PREME COURT HAS REITERATED THAT IF IN A GIVEN CIRCUMSTANCES, THE TECHNICAL CONSIDER ATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER , THE N IN THAT EVENTUALITY THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE P REFERREDAND CANNOT BE 7 I.T.A. NO. 2558 /MUM/201 8 BIPIN JAKHARIA , OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONSIDERATION S . APART FROM ABOVE WE HAVE ALSO NOTICED TH AT THE COORDINATE BENCH OF HONBLE ITAT DELHI BENCH IN APPEAL ITA NO. 6595/DEL/16 IN CASE TITLED GURINDER SINGH DHILLONVRS. ITO HAD RESTORED THE MATTER TO THE FILE OF LD. CIT(A) UNDER IDENTICAL CIRCUMSTANCES WITH A DIRECTION DO DECIDE APPEAL AFRESH ON MERI T, 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 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 D ISCUSSED 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 PRESENT APPEAL. WHILE SEEKING THE COMPLIANCE, WE DIRECT THE ASSESSEE TO FILE THE APPEAL ELECT RONICALLY WITHIN 10 DAYS FROM 8 I.T.A. NO. 2558 /MUM/201 8 BIPIN JAKHARIA , 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 ASSESS EE ON MERITS BY PASSING A SPEAKING ORDER. RESULTANTLY, WE ALLOW THE APPEAL FILED BY THE ASSESSEE . 7 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH MAY , 2019 . SD/ - SD/ - ( RAJESH KUMAR ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 14 . 05 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI