HARLAND CLARKE HOLDING SOFTWARE INDIA PRIVATE LIMITED,CHENNAI vs. DCIT, CHENNAI

The original Form 35A with due signature was filed on 12.01.2017. The DRP found that the assessee ought to have filed the Form 35A with due signature on or before 07.01.2017. Since the original Form 35A with due signature was filed only on 12.01.2017, the objection filed by the assessee was treated as invalid and non-est. According to the Ld. counsel, the scanned copy filed by the assessee on 06.01.2017 was substituted by the original Form 35A. Failure of the assessee to affix the original signature in Form 35A is only a defect which can be cured at any point of time. Since the defect was cured on 12.01.2017, it relates back to the original date of filing i.e. 06.01.2017. Hence, the DRP ought to have disposed off the objection on merit.

On the contrary, Shri Sarath Kumar Raha, the Ld. Departmental Representative submitted that what was filed before the DRP on 06.01.2017 is scanned copy of Form 35A. It does not contain the original signature of the assessee. The assessee in fact filed the original Form 35A with due signature on 12.01.2017. Since there was a delay in filing the objection before the DRP with original signature, the DRP found that the delay in non-filing of Form 35A with original signature cannot be condoned.

The issue arises before this Tribunal is whether the objection filed by the assessee is valid one or not. This being a simple issue both the Ld. counsel for the assessee and the Ld. DR very fairly submitted that the appeal itself can be disposed off instead of the stay petition. Accordingly by consent of both the Ld. counsel for the assessee and the Ld.DR, the appeal itself is taken up for hearing.

Admittedly the assessee filed objection before the DRP along with scanned copy of Form 35A on 06.01.2017. The assessee ought to have affixed his original signature in Form 35A. Therefore there was a defect in filing Form 35A before the DRP. The question arises for consideration is whether the defect in Form 35A can be rectified in a later stage. This Tribunal is of the considered opinion, failure of the assessee to affix signature in original Form 35A is only a curable defect which can be rectified when it was brought to the notice of the assessee by the DRP. In fact, the assessee filed the original Form 35A with due signature on 12.01.2017. Hence, this Tribunal is of the considered opinion that the original Form 35A along with due signature filed on 12.01.2017 substitutes the objection filed on 06.01.2017 along with scanned copy of Form 35A. In other words, the objection filed in Form 35A with due signature would relate back to the original date of filing of objection on 06.01.2017. Therefore it is not a case of delay as contended by the Ld.DR. It is a case of rectifying the defect in Form 35A. Since the defect was rectified, this Tribunal is of the considered opinion that the DRP ought to have disposed off the appeal on merit. Admittedly the objections of the assessee were not disposed off on merit. Therefore the order of the DRP is set aside and the entire issue raised by the assessee in the objection filed before the DRP is remitted back to the file of the DRP. The DRP shall dispose off the objections raised by the assessee on merit after giving reasonable opportunity to the assessee.

In the result the appeal of the assessee stands allowed. However the stay petition is dismissed.