9911796707
TMI Blog1994 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed appeals before the first appellate authority in Form No. 35. The photostat copy of the demand notice was filed with the memorandum of appeal (Form No. 35). The CIT (Appeals) was of the view that the requirement of law had not been complied with and, therefore, the appeals in both the cases were rejected being invalid. 4. The ld. counsel for the assessee has submitted before us that section 249(1) required the assessee to file an appeal in the prescribed form verified in the prescribed manner. This provision did not require the assessee to file the notice of demand either in original or its copy. Section 249(1) reads as under : " Section 249(1) -- Every appeal under this Chapter shall be in the prescribed form and shall be verifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be in duplicate and should be accompanied by a copy of the order appealed against and the notice of demand in original, if any. 3. Delete the inappropriate words. " It would be apparent from Note No. 2, as reproduced above, that the memorandum of appeal has to be filed in duplicate and it should be accompanied by the statement of facts, grounds of appeal, copy of the order appealed against and the notice of demand in original. It is on this basis that the first appellate authority appears to have rejected the assessee's appeals in both the cases on the ground that the notice of demand in original was not enclosed with the memorandum of appeal. 5. As we have already seen, the substantive law contained in section 249(1) and rule 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original. The purpose of law appears to be to ensure that the appeal was within the limitation period and also to ascertain the amount of tax involved. It is a settled law that the procedural law was only a hand-maid of justice and was to subserve the cause of justice. As we have already noted, the assessee had originally filed a photocopy of the demand notice and thereafter was prompt enough to file the original demand notice after the show-cause notice was served. This is sufficient compliance, nay a full compliance of the requirement of law. We fail to understand as to how the appeal could still be treated to be defective. It is clear that the defect, if any, had been duly removed by the assessee before the date of hearing. 7. We may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Calcutta High Court related to the period of limitation and since the memorandum of appeal had been filed without the certified copy of the order appealed against, it was a case of late filing and in the absence of any application for condonation of delay, the petition was liable to be rejected on the ground that it was barred by time. In the case before us, the things are quite different inasmuch as the CIT (Appeals) has not rejected the appeal on the ground of any delay. 9. The ld. counsel for the assessee has invited our attention to the decision of the Allahabad High Court in the case of Addl CIT v. Prem Kumar Rastogi [1978] 115 ITR 503. That was a similar case wherein the assessee did not enclose the demand notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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