15. [2018] 194 TTJ (Mumbai) 122 All India Federation of Tax Practitioners vs. ITO ITA NO. : 7134/MUM/2017 A. Y.: 2013-14 Dated: 04th May, 2018

Section 249(1) read with rule 45 – Assessee
having filed the appeal in paper form, CIT(A) ought not to have dismissed the
same solely on the ground that the assessee has not filed the appeal
electronically as per the mandate of rule 45.

FACTS

The assessee was a trust and had filed its return of income
for A.Y.2013-14. Thereafter, assessment for the said year was completed by
order u/s. 143(3) on 17-2-2016.

Aggrieved by the order of the AO, the assessee preferred
appeal before CIT(A). The assessee filed appeal before CIT(A) in paper form as
prescribed under the provisions of IT Act, 1961 within the prescribed period of
limitation.

But the same was dismissed by CIT(A) by holding that the
assessee had not filed appeal through electronic form, which was mandatory as
per IT Rules, 1962. The CIT(A) passed the order without allowing hearing to
assessee merely on the basis of alleged default of not having appeal filed
electronically .

HELD

The Tribunal observed that the assessee had already filed the
appeal in paper form, however, only the e-filing of appeal had not been done by
the assessee which was only a technical consideration.

The Tribunal followed the ratio of the Hon’ble Supreme Court
decision in the case of State of Punjab vs. Shyamalal Murari & Ors. AIR
1976 SC 1177 wherein it was 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 and no party should ordinarily be denied the opportunity
of participating in the process of justice dispensation.      

The Tribunal relying upon the judgement of Hon’ble Supreme
Court, held that the alleged compliances defaults were of a technical nature
and the same could not be a reason to deny an opportunity of appeal and
opportunity of justice in the deserving case.

In the result, the Tribunal set aside the CIT(A) order and
allowed the appeal. The Tribunal directed the assessee to file the appeal
electronically within 10 days from the date of receipt of ITAT order and
further directed the CIT(A) to consider the appeal filed by the assessee on
merits by passing a speaking order.