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Facts
The assessee, a retired army officer running a security service business, appealed to the CIT(A) after the AO completed assessment. The CIT(A) dismissed the appeal as not maintainable because Form No. 35 was not uploaded to the ITBA portal, violating mandatory requirements.
Held
The Tribunal held that dismissing the appeal without giving the assessee an opportunity to rectify the defect of not uploading Form 35 was unjust. The assessee had acknowledged filing Form 35 with the CIT(A)'s office. Therefore, the case was remanded back to the CIT(A) to decide on merits after providing a reasonable opportunity.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal for non-compliance with uploading Form 35 without allowing the assessee to cure the defect, and whether the appeal should be decided on merits.
Sections Cited
10(13A), 69A, 143(1), 143(2), 142(1), 143(3), 249(1), 45(1) of the IT rules 1962
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI DUVVURU RL REDDY(KZ) & RAJESH KUMAR
Sriprakash Pany Vs. ITO, Ward-3(1), Flat No-301, Acrux RG Enclave, Bhubaneswar N4/42F, IRC Village, Bhubaneswar, 751015 PAN/GIR No. ABIPP 4239 P (Appellant) .. ( Respondent) Assessee by : Shri S.K.Agarwal, CA & Sriprakash Pany, Assessee Revenue by : Shri Prateek Kr Mishra, Sr. DR Date of Hearing : 03/07/2025 Date of Pronouncement : 03/07/2025 O R D E R Per Bench The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NAFC), New Delhi NFAC), Delhi dated 22/03/2025 in Appeal No. CIT(A), Kolkata-19/10087/2013-14 passed for Assessment Year 2010-11.
The assessee has raised the following grounds of appeal:
“1.That the ld,. Commissioner of Income tax) Appeals committed an error of law in dismissing the appeal holding that the assessee failed to filed the Form P a g e 1 | 5 -35, despite of the fact that the asssessee duly filed the Form N0-35 which had been duly acknowledge by the office of the Commissioner of Income Tax ( Appeals) on 09.05.2013. 2.That, the Ld. Commissioner of Income tax(Appeals) is not correct in note adjudicating the appeal on merits which violates the principle of natural justice. Therefore, the order of the Ld. Commissioner of Income tax(appeals) is liable to be sett aside the appeals is to be allowed in merits.
3. That, the Ld. AO erred in facts and circumstances in disallowing the entire deduction of Rs.4,36,931/- u/s 10(13A) whereas as per the provisions of the Act Rs.1,65,672/- is to be allowed as deduction and balance of Rs.2,69,531/- is to be disallowed, the Ld. Commissioner of Income tax (Appeals) is wrong in endorsing the action of the Ld. AO, therefore the deduction of 1.65 672 is to be allowed u/s 10(13A) of the Act.
4. That, the Ld. Commissioner of Income Tax(Appeals) erred in facts and circumstances in not considering the submission of the assesseee that the assessee does not own any property at Bhubaneswar of which the Ld. AO estimated the rental income of the property should be Zero whereas the Ld. AO estimated at Rs.2,40,000/- . Therefore, the additions of Rs.1,29,797/- made under the head should be deleted.
That, the Ld. AO erred in facts I n rejecting the books of account without any plausible justification and the Ld. CIT(A) is wrong in confirming the action of the Ld. AO with regard to the rejection of books of account and estimation of income from Business of profession at Rs.29,89,740/- whereas the assessee had correctly declared the income of Rs.13,64,947/-, therefore the difference of Rs.13,24,793/- is liable to be deleted.
That the Ld. Authorities below are wrong in holding that the cash deposits of 9,45,600 is out of the undisclosed source of the assessee despite off the fact that all the deposits are out off eh disclosed source. Hence, the addition of Rs.9,45,600/- is liable to deleted.
7. That, the Ld. CIT(A) was not correct in considering the amount of Rs.1,00,000/- transferred by son from his own salary income which is from the disclosed source and wrong in confirming the additions of 1,00,000 which had been held by the Ld. AO as undisclosed loan. Hence, the additions of 1,00,000/- is liable to be deleted.
That, the Ld. CIT(A) as well as the Ld. AO are wrong in the holding the credits of Rs.8,79,787/- as income of the assessee whereas Rs.2,04,490/- is only the income out of credits of Rs.8,79,787/-, thus the extra additions of Rs.6,75,297/- is liable to be deleted.
That, the Ld. AO is wrong in holding the total redemption of Mutual funds and other deposits of Rs. 2,57,456/- as unexplained investments u/s 69 A and the Ld. CIT(A) is not correct in not considering the submission of the assessee, therefore the additions of Rs.2,57,456/- is liable to deleted.
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That, the appellant craves to alter, amend, modify or add any other ground that may be considered necessary in the course of appeal proceeding.”
Facts on brief that the assessee is retired army officers received pension from Ministry of Defence Govt. of India. After his retirement his running a business of security service, under the trade name of M/s Prudential Security & providing the security services to the different public sectors undertaking. The assesee submitted his return of income and the CPC vide order u/s 143(1) of the Act and accepted the total income as per return. Later on the AO issued notice u/s 143(2) of the Act and notice 142(1) of the Act to the assessee. In responds to the notice the assessee produced P & L Account , Balance sheet , Tax Audit report in respect of proprietorship business under the name and style off M/s Prudential Securities, statement of bank account held in individual capacity, banks certificate regarding house building loan, etc,. However, the assesse failed to produce the books of accounts and bank statement of prudential security for examination. Therefore, the AO completed the assessment 143(3) of the Act inter alia determining the total income at Rs.79,32,460/- and added the same to the income of the assessee. The assessee preferred appeal before the CIT(A) without uploading Form No.35 in the ITBA portal. The ld. CIT(A) observed that the appeal suffers from non-compliance with mandatory requirements prescribed under rule 45(1) of the IT rules 1962 and Section 249 (1) of the Act due to the non-availability form no. 35 in the portal. Therefore, the ld.CIT(A) dismissed the appeal of the assessee in liming as not maintainable. Hence, the assessee preferred appeal before us.
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Reiterating the grounds of appeal, ld AR submitted that at the time of filing the appeal, the assessee had duly filled the Form No.35, which had been duly acknowledged by the office of the commissioner of Income Tax (A) on 9.5.2013, hence the ld CIT(A) is not justified in adjudicating the appeal on merits, which violates the principles of natural justice.
5. Per contra, the Ld. Sr. DR has relied on the findings of the Ld. CIT(A). It was submitted that as per the procedure of filing of the appeal, the assessee is required to furnish Form No. 35 and alongwith and attach the copy of the order appealed against and the notice of the demand and these are mandatory documentation which are to be duly submitted and verified by the assessee before the matter may be adjudicated upon by the Ld. CIT(A). It was submitted that the acknowledgement that Form 35 has been filed, should have been shown to the ld CIT(A). At the same time, the Ld. Sr. DR fairly submitted that since the assessee has acknowledgement regarding Form No.35, the matter may be remanded back to the file of the Ld. CIT(A) to be decided on merits by the Ld. CIT(A).
6. We have heard the rival submissions and perused the material available on record. The only ground for dismissing the appeal by the ld CIT(A) is that Form No.35 has not been uploaded alongwith appeal. Before us, ld AR submitted that form 35 has been filed, which has been duly acknowledged by the office of ld CIT(A). Where the ld CIT(A) is ceased of the same, he should have asked the assessee to cure the defect, however, we find that no show-cause has apparently been showed by the ld CIT(A) to cure the mistake so happened why Form 35 has not been filed. Unless the assessee is put to notice, dismissing the appeal
P a g e 4 | 5 of the assessee holding the same to be defective won't meet the ends of justice and the assessee's right of seeking redressal cannot be taken away where the assessee has exercised its rights of filing the appeal in time and otherwise meeting the prescribed requirements under the law. In light of the same, we hereby direct the assessee to file again Form 35 before the ld CIT(A) and direct the ld CIT(A) to consider the Form 35 and decide the matter on merits of the case as per law after providing reasonable opportunity to the assessee.
In the result, the appeal of the assessee is allowed for statistical purposes. Order dictated and pronounced in the open court on 03/07/2025.