SHRI KAILASH CHAND JAT, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, JAIPUR

ITA 373/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6296 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 21-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Non compliance; Set aside
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 373/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2015-16 SHRI KAILASH CHAND JAT B-93, SHIVPURI COLONY, AIRPORT ROAD, BUDDISINGHPURA, SANGANER, JAIPUR. CUKE VS. THE ACIT, CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AEDPJ 8411 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 10/07/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 12/07/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 01.01.2018 OF LD. CIT(A), JAIPUR FOR THE ASSESSMENT YEAR 2015-16. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, LD. CIT(A) ERRED IN DISMISSING APPEAL OF ASSESSEE I N LIMINE, WITHOUT CONSIDERING THE SUBMISSION MADE AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD. ITA NO. 373/JP/2018 SHRI KAILASH CHAND JAT VS. ACIT 2 1.1 THAT, THE LD. CIT(A) FURTHER ERRED IN DISMISSIN G THE APPEAL BY HOLDING THE SAME DEFECTIVE, SOLELY FOR THE REASON T HAT APPEAL WAS FILED IN PAPER FORM INSTEAD OF ONLINE MODE. APPELLA NT PRAYS THAT ORDER HAS BEEN PASSED BY LD. CIT(A) WITHOUT PROVIDI NG OPPORTUNITY TO RECTIFY THE DEFECT IN APPEAL FILED, THUS ORDER SO PASSED IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND DESERVES TO BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 10,00,000/- MADE BY LD. AO ARBITRARILY AND BY COMPLETELY BRUSHI NG ASIDE THE SUBMISSION MADE AND EVIDENCES ADDUCED. APPELLANT PR AYS ADDITION SO CONFIRMED, DESERVES TO BE DELETED. 3. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELE TE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH E LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE ON T HE GROUND THAT THE ASSESSEE HAS NOT FILED THE APPEAL THROUGH E- FILING AS PER THE PROVISIONS OF RULE 45 OF THE IT RULES. HE HAS FURTHER CONTENDE D THAT THE LD. CIT(A) HAS NOT ISSUED ANY SHOW CAUSE NOTICE OR DEFECT MEMO TO GRANT AN OPPORTUNITY TO THE ASSESSEE TO RECTIFY THE DEFECT I N FILING OF THE APPEAL. THUS, THE LD. AR HAS SUBMITTED THAT THE IMPUGNED OR DER PASSED BY THE LD. CIT(A) MAY BE SET ASIDE AND THE ASSESSEE MAY BE ALLOWED TO FILE THE APPEAL THROUGH E-FILING. IN SUPPORT OF HIS CONTENTI ON, HE HAS RELIED UPON THE DECISION DATED 04.05.2018 MUMBAI BENCHES OF THE TRIBUNAL IN CASE ITA NO. 373/JP/2018 SHRI KAILASH CHAND JAT VS. ACIT 3 OF M/S ALL INDIA FEDERATION OF TAX PRACTITIONERS VS. I TO IN ITA NO. 7134/MUM/2017 . 3. ON THE OTHER HAND, LD. DR HAS RELIED UPON THE OR DER OF THE CIT(A) AND SUBMITTED THAT THE LD. CIT(A) HAS ALREADY GIVEN A LIBERTY TO THE ASSESSEE TO E-FILE THE APPEAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT THE APPEAL FILED BY THE ASSESSEE (MANUALLY) WAS DULY TAKEN UP FOR HEARING B Y THE LD. CIT(A) AND AFTER HEARING THE REPRESENTATIVE OF THE ASSESSE E SHRI K.L. CHOUDHARY, C.A. THE LD. CIT(A) HAS FINALLY DISMISSE D THE APPEAL ON THE GROUND OF NON MAINTAINABILITY IN PARAS 3.1.1, 3.1.2 & 4 AS UNDER:- 3.1.1 I HAVE CONSIDERED THE ASSESSMENT ORDER, SUBM ISSION MADE BY THE APPELLANT AS WELL AS THE PAPER APPEAL. ON PE RUSAL OF THE DETAILS, IT IS OBSERVED THAT THIS APPEAL WAS FILED MANUALLY IN THIS OFFICE ON 23.1.2017. AS PER THE PROVISIONS OF RULE 45 OF THE IT RULES, 1961, IT HAS BEEN MADE COMPULSORY/MANDATORY TO E-FILE THE APPEAL BEFORE THE CIT(A) W.E.F. 01.03.2016 IN R ESPECT OF PERSONS WHO ARE REQUIRED TO FURNISH RETURN OF INCOM E ELECTRONICALLY. SUBSEQUENTLY, THIS TIME LIMIT WAS E XTENDED TO 15.06.2016, VIDE CIRCULAR NO. 20/2016 (F. NO. 279/M ISC/M- 54/2016/ITJ DATED 26.05.2016). DURING THE APPELLATE PROCEEDINGS, THE ITBA SYSTEM WAS CHECKED TO VERIFY WHETHER THE APPELLANT HAS FILED THE APPEAL ELECTRONICALLY AS MA NDATED UNDER RULE 45 OF IT RULES. THE ITBA VERIFICATION SHOWED T HAT THE APPEAL HAS NOT BEEN FILED ELECTRONICALLY. ITA NO. 373/JP/2018 SHRI KAILASH CHAND JAT VS. ACIT 4 3.1.2 IN VIEW OF THE ABOVE FACTS, IT IS EVIDENCE TH AT THE CASE OF THE APPELLANT IS COVERED BY THE PROVISION OF SECTIO N 249 R.W. RULE 45 OF IT RULES WHICH LAYS DOWN THAT EVERY APPEAL SH ALL BE FILED IN THE PRESCRIBED FORM AND SHALL BE VERIFIED IN THE PR ESCRIBED MANNER. IN THIS CASE THE APPELLANT HAD FILED THE AP PEAL MANUALLY AND WAS REQUIRED TO E-FILE IN ACCORDANCE WITH RULE 45 OF IT RULES FOR THE EXTENDED PERIOD I.E. 15.06.2016. SINCE, THI S APPEAL HAS BEEN FILED MANUALLY, IT IS DEFECTIVE APPEAL WHICH I S NON- MAINTAINABLE AND IS BEING FILED. THE E-APPEAL MAY B E TAKEN UP SEPARATELY FOR ADJUDICATION WHENEVER IT IS FILED AS PER LAW AND EXISTING INSTRUCTION IN FORCE. 4. THUS, THIS APPEAL IS DEFECTIVE AND NON-MAINTAIN ABLE AND IS BEING FILED/DISMISSED. THUS, NO ADJUDICATION ON MER IT IS CONSIDERED NECESSARY. IN THE RESULT, THE APPEAL IS DISMISSED ON TECHNICAL GROUNDS BEING MANUALLY FILED AND HENCE IN ADMISSIBLE AB-INITIO. THUS, IT IS CLEAR THAT THE LD. CIT(A) TOOK COGNIZAN CE OF THE APPEAL FILED MANUALLY THOUGH IT WAS DEFECTIVE. ONCE THE APPEAL F ILED BY THE ASSESSEE FOUND TO BE DEFECTIVE BECAUSE NON COMPLIANCE OF RUL E 45 OF THE IT RULES, THE PROPER COURSE OF ACTION WAS TO ALLOW THE ASSESSEE TO FILE THE APPEAL THROUGH E-FILING AND THEN, THE APPEAL SO FIL ED BY THE ASSESSEE OUGHT TO HAVE BEEN DECIDED ON MERITS. THUS, THE APP EAL OF THE ASSESSEE WAS DISMISSED BEING NOT MAINTAINABLE WITHOUT EVEN I SSUING ANY NOTICE OR RAISING SUCH A QUESTION OF MAINTAINABILITY OF TH E APPEAL TO THE ASSESSEE. HENCE, THE ORDER PASSED BY THE LD. CIT(A) IS IN VIOLATION OF ITA NO. 373/JP/2018 SHRI KAILASH CHAND JAT VS. ACIT 5 PRINCIPLES OF NATURAL JUSTICE AND CONSEQUENTLY NOT SUSTAINABLE IN LAW. THE MUMBAI BENCHES OF THE TRIBUNAL IN CASE OF M/S A LL INDIA FEDERATION OF TAX PRACTITIONERS VS. ITO (SUPRA) WHILE CONSIDER ING THE REQUIREMENT OF E-FILING HAS HELD IN PARA 6 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 INTRO DUCED FOR THE FIRST TIME VIDE RULE 45 OF I.T. RULES 1962, MANDATING COM PULSORY E- FILING OF APPEALS BEFORE APPELLATE COMMISSIONER WIT H EFFECT FROM 1 ST MARCH 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 ASSESSMEN T IN 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 PAPE R FORM AS PRESCRIBED UNDER THE PROVISIONS OF I.T. ACT 1961 WI THIN THE PRESCRIBED PERIOD OF LIMITATION. BUT THE SAME WAS D ISMISSED BY LD. CIT(A) BY HOLDING THAT ASSESSEE HAD NOT FILED A PPEAL THROUGH ELECTRONIC FORM, WHICH IS MANDATORY AS PER I.T. RUL ES 1962. AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION , WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF STATE OF PUNJ AB VS.SHYAMALALMURARI AND OTHERS REPORTED IN AIR 1976 (SC) 1177 HAS CATEGORICALLY HELD THAT COURTS SHOULD NOT GO ST RICTLY BY THE RULEBOOK TO DENY JUSTICE TO THE DESERVING LITIGANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. IT HAS BEEN REITERATED B Y THE HONBLE SUPREME COURT THAT ALL THE RULES OF PROCEDURE ARE H ANDMAID OF JUSTICE. THE LANGUAGE EMPLOYED BY THE DRAFTSMAN OF PROCEDURAL LAW MAY BE LIBERAL OR STRINGENT, BUT THE FACT REMAI NS THAT THE OBJECT OF PRESCRIBING PROCEDURE IS TO ADVANCE THE C AUSE OF JUSTICE. ITA NO. 373/JP/2018 SHRI KAILASH CHAND JAT VS. ACIT 6 THE HONBLE APEX COURT HAS SAID IN AN ADVERSARIAL SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY O F 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. KANCHA N DEVI, REITERATED THAT, A PROCEDURAL LAW SHOULD NOT ORDINA RILY 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 THA T THE ASSESSEE HAD ALREADY FILED THE APPEAL IN PAPER FORM , HOWEVER ONLY THE E-FILING OF APPEAL HAS NOT BEEN DONE BY TH E ASSESSEE AND ACCORDING TO US, THE SAME IS ONLY A TECHNICAL CONSI DERATION. IN THIS 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 CAUSEOF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRE D AND CANNOT BE OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONS IDERATIONS. APART FROM ABOVE WE HAVE ALSO NOTICED THAT THE COOR DINATE BENCH OF HONBLE ITAT DELHI BENCH IN APPEAL ITA NO. 6595/ DEL/16 IN CASE TITLED GURINDER SINGH DHILLON VRS. ITO HAD RES TORED THE MATTER TO THE FILE OF LD. CIT(A) UNDER IDENTICAL CI RCUMSTANCES 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 T HE PAPER FORM WAS ALREADY WITH LD. CIT(A), THEREFORE IN THAT EVEN TUALITY THE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL SOLEL Y ON THE GROUND THAT THE ASSESSEE HAS NOT FILED THE APPEAL E LECTRONICALLY 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 C ASE, WE SET ITA NO. 373/JP/2018 SHRI KAILASH CHAND JAT VS. ACIT 7 ASIDE THE ORDERS OF LD. CIT(A) & ALLOW THE PRESENT APPEAL. WHILE SEEKING THE COMPLIANCE, WE DIRECT THE ASSESSEE TO F ILE THE APPEAL ELECTRONICALLY WITHIN 10 DAYS FROM THE DATE OF RECE IPT 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 APPE AL FILED BY THE ASSESSEE ON MERITS BY PASSING A SPEAKING ORDER. RES ULTANTLY, WE ALLOW THE APPEAL FILED BY THE ASSESSEE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND REMAND TH E MATTER TO THE RECORD OF THE LD. CIT(A) WITH DIRECTION TO THE ASSE SSEE TO E-FILE THE APPEAL. THE LD. CIT(A) SHALL DECIDE THE APPEAL OF T HE ASSESSEE ON MERITS. NEEDLESS TO SAY THE ASSESSEE BE GIVEN AN AP PROPRIATE OPPORTUNITY BEFORE PASSING A FRESH ORDER. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/07/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/07/2018. * SANTOSH. ITA NO. 373/JP/2018 SHRI KAILASH CHAND JAT VS. ACIT 8 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI KAILASH CHAND JAT, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CENTRAL CIRCLE-1, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 373/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR