SHRI JAYKRISHNA DHANESHBHAI PATHAK, MUMBAI V. INCOME TAX OFFICER 17(2)(1), MUMBAI

ITA 5291/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1312 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 13-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DINESH B
• Section: 201

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI , !'#,$%!' &! BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER !. 5291/ / 2019 (%*. . 2013-14 ) ITA NO.5291/MUM/2019(A.Y.2013-14) SHRI JAYKRISHNA DHARMESHBHAI PATHAK, 47/49, BOMBAY YARN HOUSE, PYDHONIE, MUMBAI 400 003 PAN:AGNPP3108K ...... #, / APPELLANT * VS. INCOME TAX OFFICER 17(2)(1), AAYKAR BHAVAN, M.K.ROAD, MUMBAI 400 020 ..... %-/ RESPONDENT ASSESSEE BY : SHRI DINESH B. REVENUE BY : MS. USHA GAIKWAD ! *.%- #/ DATE OF HEARING : 08/02/2021 /0 .%- #/ DATE OF PRONOUNCEMENT : 08/02/2021 &/ ORDER PER VIKAS AWASTHY,JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF COMMISSIONER OF INCOME TAX APPEALS-56, MUMBAI [IN SHORT CIT(A) ] DATED 21/05/2019 FOR THE ASSESSMENT YEAR 2013-14. 2. THE APPEAL OF THE ASSESSEE HAS BEEN REJECTED BY THE CIT(A) IN A SUMMARY MANNER ON ACCOUNT OF TECHNICAL DEFECT. THE ASSESSE E FILED APPEAL BEFORE THE CIT(A) 2 ITA NO.5291/MUM/2019(A.Y.2013-14) MANUALLY WHEREAS AS PER AMENDED RULES THE APPEAL WA S MANDATORILY REQUIRED TO BE FILED THROUGH E-MODE I.E. E-FILING. 3. SHRI DINESH B. , APPEARING ON BEHALF OF THE ASSE SSEE HAS FILED WRITTEN SUBMISSION AGAINST REJECTION OF APPEAL ON TECHNICAL GROUND. THE SAME ARE REPRODUCED AS UNDER:- THE RELEVANT FACTS IN RESPECT OF THIS GROUND ARE AS UNDER: (I) THE APPEAL OF THE APPELLANT FOR THE YEAR UNDE R APPEAL IS DISMISSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) - 56, MUMBAI ['HEREINAFLC R REFERRED AS 'HON'BLE CIT(A)'] VIDE HIS ORDER DATED 21 MAY 2019. (II) IT HAS BEEN DISMISSED ON THE BASIS OF THE TECH NICAL DEFECT THAT THE SAID APPEAL WAS NOT E- FILED. (III) THE APPEAL WAS FILED BY THE APPELLANT ON 25 APRIL 2016 IN THE OFFICE OF THE COMMISSIONER OF INCOME-LAX (APPEALS) - 56. MUMBAI MANUALLY. IT WAS ACCEPTED BY THE OFFICE OF THE SAID COMMISSIONER OF INCOME-FAX WITHOUT EVEN ADVISING T HE APPELLANT THAT HE WAS REQUIRED TO E- FILE THE APPEAL. THIS WOULD MEAN THAT EVEN THE OFF ICE OF CIT(A) WAS ALSO NOT AWARE OF THIS MANDATORY REQUIREMENT AT THAT TIME. (IV) THE E-FILING OF FIRST APPEALS BECOME MANDATORY AS STATED BY HONBLE CIT(A) IN HIS ORDER ITSELF FROM 01 MARCH,2016. THE APPELLANT WAS NOT A WARE OF THIS AND THE APPEAL UNDER REFERENCE WAS FILED BY HIM MANUALLY ON 25 APRIL 201 6. (V) IN THE APPELLATE ORDER, HONBLE CIT(A) HAS ALSO STATED ABOUT THIS DEFECT AS EVEN IF OVERLOOKED AT INITIATION OF APPEAL HEARING STAGE WH EN NOTED BEFORE FINAL DECISION TAKEN CAN BE ACTED UPON. AS LONG AS THE TECHNICAL DEFECT S UBSISTS, THE APPEAL CANNOT BE VALID WITH THIS OBSERVATION, THE HONBLE CIT(A) HELD THAT THE APPEAL IS TREATED AS DISMISSED, BEING ONE NOT ADMITTED. THE ASSESSEE IN SUPPORT OF HIS CONTENTION HAS PLACE D RELIANCE ON THE DECISION IN THE CASE OF UMESH A. MISHRA VS. ITO IN ITA NO.1936/MUM /2018 DECIDED ON 119/03/2019. 4. PER CONTRA, MS. USHA GAIKWAD, REPRESENTING THE D EPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSI NG THE APPEAL OF THE ASSESSEE. 5. BOTH SIDES HEARD, ORDERS OF AUTHORITIES BELOW EX AMINED. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE APPEAL HAS BEEN REJEC TED ON ACCOUNT OF TECHNICAL DEFECT IN NON-FILING OF E-APPEAL. UNDISPUTEDLY, TH E ASSESSEE HAS FILED THE APPEAL 3 ITA NO.5291/MUM/2019(A.Y.2013-14) MANUALLY, ON 25/04/2016 WITHIN THE PERIOD OF PRESC RIBED LIMITATION. RULE 45 OF THE INCOME TAX RULES, 1962 WAS AMENDED W.E.F. 01/03/20 16 MANDATING THE ASSESSEE TO FILE FORM NO.35 ELECTRONICALLY UNDER DIGITAL SIGNAT URE. THE ASSESSEE FILED APPEAL BEFORE CIT(A) SHORTLY AFTER THE AMENDMENT IN RULES REQUIRING E-FILING OF APPEALS. THUS, THE APPEAL WAS FILED IN EARLY DAYS OF POST AMENDMENT TO APPEAL FILING PROCEDURE PERIOD. THE RULES OF PROCEDURE ARE MEANT AS HAND MADE OF JUSTICE FOR EFFICIENT AND ORDERLY FUNCTION OF JUDICIAL SYSTEM. WHERE, PROCEDURAL RULES RESULT IN MISCARRIAGE OR TRAVESTY OF ITS PURPOSE, SUCH RULE S SOMETIMES HAVE TO BE PASSED OVER IN THE LARGER INTEREST OF JUSTICE. IT IS TRITE THA T WHEN TECHNICALITIES ARE PITTED AGAINST JUSTICE, THE COURT WILL LEAN TOWARDS ADVANCEMENT OF JUSTICE. 6. TAKING INTO CONSIDERATION ENTIRETY OF FACTS AND IN THE INTEREST OF JUSTICE WE DEEM IT APPROPRIATE TO RESTORE THIS APPEAL BACK TO THE FILE OF CIT(A). THE ASSESSEE IS DIRECTED TO E-FILE THE APPEAL IN ACCORDANCE WITH THE AMENDED PROVISIONS OF RULE - 45 WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. THE CIT(A) SHALL ADMIT THE APPEAL AND THEREAFTER DECIDE THE SAME ON MERITS , IN ACCORDANCE WITH LAW. THE IMPUGNED ORDER IS SET-ASIDE AND THE APPEAL BY THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, APPEAL BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY, THE 8 TH DAY OF FEBRUARY, 2021. SD/- SD/- (PRAMOD KUMAR) (VIKAS AWAS THY) / VICE PRESIDENT $% !' / JUDICIAL MEMBER / MUMBAI, 2*/ DATED 08/02/2021 VM , SR. PS (O/S) 4 ITA NO.5291/MUM/2019(A.Y.2013-14) %-3 4& 0- COPY OF THE ORDER FORWARDED TO : 1. #, / THE APPELLANT , 2. %- / THE RESPONDENT. 3. 5- ( )/ THE CIT(A)- 4. 5- CIT 5. 67 %-%* , . . . , / DR, ITAT, MUMBAI 6. 789 : / GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI