2020 (11) TMI 730 - AT - Income Tax

Defect in appeal - date of service of the order appealed against was not mentioned in Form 35 - CIT(A) dismissed the appeal of the assessee on the ground that Form 35 was verified on 28.12.2011 and the demand notice was served on the assessee on 03.01.2012 - HELD THAT - Income tax proceeding being judicial proceeding, the CIT(A) is expected to dispose the appeal on merit rather than technicality. In this case, for the assessment year 2005-06, admittedly the assessment order was passed on 31.12.2010 and the appeal was filed on 28.01.2011. Therefore the appeal is filed within the time. Even if Form 35 was not filed in, in respect of the date of receipt of assessment order, this Tribunal is of the considered opinion that defect memo ought to have been issued so that the assessee might have rectified the defect. The very object of mentioning the date of receipt of the assessment order is to compute the period of limitation. In this case, admittedly, the appeal is filed within the period of limitation. Therefore, there is no justification for dismissing the appeal on technicality on the ground that the date of receipt of the assessment order was not mentioned in Form 35. Moreover, the appeal was admittedly filed on 28.01.2011. The appeal is pending for the last 8 years. After keeping the matter for last 8 years, dismissing the appeal on the ground that date of receipt of assessment order was not filled in Form 35 is not correct. In the opinion of this Tribunal, the CIT(A) ought to have disposed the appeal on merit after considering the grounds of appeal of appeal and other material on record. Since such an exercise was not done, the matter needs to be reconsidered by the CIT(A).

Summary

Issues:

1. Dismissal of appeals by CIT(A) for assessment years 2005-06 and 2008-09 based on technicalities related to Form 35 verification and date of service of orders.

Analysis:

Issue 1: Dismissal of appeal for assessment year 2005-06

The appellant's representative argued that the appeal for the assessment year 2005-06 was dismissed by the CIT(A) due to the absence of the date of service of the order in Form 35. The representative highlighted that the appeal was filed within the limitation period, even though the date of service was not mentioned. It was contended that the CIT(A) should have issued a defect memo if there was an issue with the form. The Tribunal emphasized that the appeal was filed within the time limit and criticized the CIT(A) for dismissing it solely based on a technicality. The Tribunal stressed that the CIT(A) should have considered the appeal on its merits rather than focusing on procedural deficiencies. The Tribunal directed the CIT(A) to reexamine the matter and dispose of the appeal on its merits after giving the appellant a fair opportunity.

Issue 2: Dismissal of appeal for assessment year 2008-09

Regarding the appeal for the assessment year 2008-09, the CIT(A) dismissed the appeal due to the timing of Form 35 verification and demand notice service. The appellant's representative argued that the dismissal was unwarranted as the appeal was filed within the limitation period. The Tribunal concurred, stating that technicalities should not impede the consideration of appeals filed within the stipulated time frame. The Tribunal criticized the CIT(A) for not allowing the appellant to rectify any defects and emphasized that the verification date on Form 35 should not be doubted when it aligns with the date of the assessment order. The Tribunal held that the CIT(A) erred in dismissing the appeal and instructed a reevaluation of the matter on its merits with due process.

In conclusion, the Tribunal allowed both appeals for statistical purposes, setting aside the CIT(A)'s orders for both assessment years and instructing a reconsideration of the issues raised by the appellant on their merits. The Tribunal emphasized the importance of considering appeals based on substance rather than technicalities and ensuring a fair opportunity for the appellant in accordance with the law.