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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI RAMIT KOCHAR
आदेश /O R D E R
PER N.R.S. GANESAN, JUDICIAL MEMBER:
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.
2.1 Referring to the order of the CIT(A) for the assessment year 2008-09, the Ld.Representative for the assessee submitted that the 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. Therefore, the CIT(A) found that the appellant could not have verified Form 35 on 28.12.2011, which is prior to the date of service of demand notice. Accordingly, he dismissed the appeal on technicality 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).
5. 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 dispose the appeals on merit after giving a reasonable opportunity to the assessee in accordance with law.
In the result, both the appeals of the assessee are allowed for statistical purposes.
Order pronounced in the court on 3rd March, 2020 at Chennai.