2023 (2) TMI 500 - AT - Income Tax

Maintainability of Appeal before CIT-A - Status of appellant AOP - AOP has used Individual PAN Number - Penalty u/s 271(1)(c)and 271(B) - CIT(A) held that Association of Person (AOP) was different entity than the case of the individual and it was wrong on the part of the said AOP to use the PAN of the individual in filling the appeals of the said AOP - HELD THAT - CIT(A) noted that appeals have been filed by the AOP by using the PAN of the individual and as AOP is a separate entity assessed as such by the AO, therefore, ld. CIT(A) did not admit these three appeals for adjudication and dismissed these three appeals. We note that ld. CIT(A) did not adjudicate the issue on merits in accordance with the provisions of section 250(6) of the Act, rather dismissed the appeal of the assessee, stating that AOP has used Individual PAN Number. We note that defect in form no. 35 is a curable defect. The ld. CIT(A) should have asked the assessee to correct form no.35, and remove the defect. With these facts, we are of the view that appeal of the AOP is maintainable in law. We direct the Ld. CIT(A) to issue defect memo to the assessee to remove the defect in Form No.35 filed before the ld. CIT(A) and in turn assessee should remove the defect. Therefore, we set aside the order of ld. CIT(A) and remit this matter back to the file of ld. CIT(A) to adjudicate assessee s (AOP) appeal on merit. For statistical purposes, these three appeals filed by the assessee are allowed.

Summary

Issues Involved:
1. Admissibility of appeals filed using incorrect PAN.
2. Jurisdiction of CIT(A) to adjudicate appeals.
3. Requirement to correct defects in Form No. 35.

Detailed Analysis:

Admissibility of Appeals Filed Using Incorrect PAN:
The primary issue in these appeals is that the PAN of an individual, Bhaveshbhai Arvindbhai Buha, was used to file appeals for M/s. Sai Ashish Developers (AOP). The CIT(A) dismissed the appeals on this ground, stating that the AOP is a separate entity and should not use the PAN of an individual. The Tribunal noted that the defect in Form No. 35, which involves using the wrong PAN, is a curable defect. The CIT(A) should have asked the assessee to correct this defect rather than dismissing the appeals outright. The Tribunal directed the CIT(A) to issue a defect memo to the assessee to correct the PAN in Form No. 35 and then adjudicate the appeals on their merits.

Jurisdiction of CIT(A) to Adjudicate Appeals:
The CIT(A)-4, Surat, did not admit the appeals for adjudication, stating that the PAN of Bhaveshbhai Arvindbhai Buha (individual) was used for M/s. Sai Ashish Developers (AOP). The Tribunal observed that the CIT(A)-4, Surat, should have transferred the appeals to the National Faceless Appeal Centre (NFAC) if he believed he lacked jurisdiction. The Tribunal found that dismissing the appeals without considering the merits violated the order of the Income-tax Appellate Tribunal, Surat Bench, which had previously restored the quantum appeal back to the file of CIT(A)-1, Surat.

Requirement to Correct Defects in Form No. 35:
The Tribunal emphasized that defects in Form No. 35, such as using the wrong PAN, are curable. The CIT(A) should have issued a defect memo to the assessee, asking for the correction of the PAN. The Tribunal directed the CIT(A) to allow the assessee to correct the PAN in Form No. 35 and then proceed to adjudicate the appeals on their merits. The Tribunal set aside the order of the CIT(A) and remitted the matter back to the file of the CIT(A) for adjudication on merits.

Conclusion:
The Tribunal allowed the appeals for statistical purposes, directing the CIT(A) to issue a defect memo to the assessee to correct the PAN in Form No. 35 and then adjudicate the appeals on their merits. The Tribunal emphasized that defects in the form are curable and should not result in outright dismissal of the appeals. The order was pronounced on 30/11/2022, with directions to place a copy of the order in all appeal folders.