M/S. GATES UNITTA INDIA PVT. LTD.,,KANCHEEPURAM vs. ACIT, CORPORATE CIRCLE - 2 (1),, CHENNAI

Shri B. Ramakrishnan, the Ld. Representative for the assessee submitted that the CIT(A) dismissed the appeal of the assessee for the assessment year 2005-06 on the ground that the date of service of the order appealed against was not mentioned in Form 35. Referring to the assessment order, the Ld.Representative submitted that the assessment order itself was passed on 31.12.2010 and the appeal was admittedly filed before the CIT(A) on 28.01.2011. Therefore, the appeal was filed within the period of limitation. Even if the column in Form 35 was not filled in respect of date of service of the order appealed against, the CIT(A) ought to have issued a defect memo. Admittedly no defect memo was issued and he simply dismissed the appeal without considering anything on merit.

On the contrary, Shri AR.V. Sreenivasan, the Ld. Departmental Representative submitted that the date of receipt of the assessment order was not filed in Form 35. Therefore, the CIT(A) dismissed the appeal for the assessment year 2005-06. Similarly, Form 35 was verified for the assessment year 2008-09 on 28.12.2011. However, demand notice was served on the assessee on 03.01.2012. Therefore, the CIT(A) found that there was a defect in the appeal. Accordingly the same was dismissed.

Having heard the Ld.Representative for the assessee and the Ld.DR, this Tribunal is of the considered opinion 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

Similarly for the assessment year 2008-09, admittedly the assessment order was dated 28.12.2011. The appeal was filed before the CIT(A) on 31.01.2012. After keeping the matter for 7 long years, the appeal was dismissed on 18.06.2019 on the ground that the assessee ought not have verified Form 35 on 28.12.2011. Such a technical matter cannot be a ground for dismissing the appeal of the assessee. This Tribunal is of the considered opinion that technicalities cannot stand in the way of disposing off the appeal on merit, especially when the appeal was admittedly filed within the period of limitation. Even in case, there was any defect in filling up Form 35, this Tribunal is of the considered opinion that an opportunity shall be given to the assessee to rectify the defect by issuing a defect memo or returning the appeal paper itself. Such an exercise was not done in this case. When the assessment order was passed on 28.12.2011, the verification made on 28.12.2011 in Form 35 cannot be doubted. Nothing wrong in verifying Form 35 on the date of assessment order. In view of the above, this Tribunal is unable to uphold the orders of CIT(A). Accordingly the orders of CIT(A) for both the assessment years are set aside and the entire issue raised by the assessee on merit is restored to the file of the CIT(A). The CIT(A) is directed to

In the result, both the appeals of the assessee are allowed for statistical purposes.