Appeal cannot be dismissed for defect in form without granting Opportunity to cure defect

Undoubtedly, the Ld.CIT (Appeals) had dismissed assessee’s appeal since the appeal form was not properly verified as prescribed by Rule 45(2) of the Income Tax Rules r.w.s. 140 of the Act which requires the same to be signed by the Managing Director of the company while it was signed by a person whose name was also not mentioned in the appeal form. It is also an undisputed fact that when the appeal was filed no defect notice was issued to the assessee and it was only on 11.03.2016, during appellate proceedings, that the assessee was confronted with the same. Therefore, it is probable that the assessee remained unaware of the defect all along and it was only 11.3.2016 that it became aware of the said defect and filed a reply mentioning the name of the person who had signed the form and stating that the said person had been authorized by the Managing Director of the company to do so. Without giving any further opportunity to the assessee to file evidence in this regard, the Ld.CIT(Appeals), we find, dismissed the assessee’s appeal.

In view of the above facts, we are in agreement with the contention of the Ld. counsel for assessee that adequate opportunity to address the defect in the appeal form filed by the assessee was not given to the assessee nor was adequate opportunity given to explain the reason for the defect. In view of the same, we consider it fit to restore the appeal denovo to the file of the Ld.CIT(Appeals) to be decided afresh on the issue of non-maintainability of the appeal along with the other grounds raised, after giving due opportunity of hearing to the assessee.

Full Text of the ITAT Order is as follows:-