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

Both the appeals of the assessee are directed against the respective order passed by the Commissioner of Income Tax (Appeals)–9, Chennai both dated 18.06.2019 for the assessment year 2005-06 and 2008-09. Since similar issue arises for consideration in both the appeals, we heard the same together and disposing off the same by this common order.

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 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).

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