CIT Appeal cannot be dismissed for mismatch in grounds of appeal & form 35

Vijesh Samule Vs ITO (ITAT Indore)

Introduction: The Income Tax Appellate Tribunal (ITAT) of Indore has pronounced a significant ruling in the case of Vijesh Samule Vs ITO. The case revolves around the dismissal of the appellant’s appeal on a technical ground due to a mistake in Form 35. The tribunal has highlighted the importance of rectifying errors and has granted another opportunity for a fair appeal.

Analysis

1. Context of the Mistake: The case’s complexity began when the Commissioner of Income Tax (Appeal) dismissed the appellant’s appeal, citing that the grounds of appeal and Form 35 were not matching. The appellant had raised valid concerns against the assessment order, but a mistake in mentioning the section under which the order was passed by the ITO led to the appeal being termed deficient.

2. ITAT’s Observations: The tribunal carefully assessed the situation and recognized that a mere error in Form 35 should not hinder the process of justice. It decided that the dismissal was too harsh and not in line with the principles of equity.

3. Implications of the Ruling: This ruling signifies the importance of a just and fair trial process and sets a precedent for future cases. It underlines that procedural mistakes, although significant, should not impede the course of justice.

Conclusion: The ruling of ITAT Indore in Vijesh Samule Vs ITO is a crucial reminder of the importance of justice and fairness in legal proceedings. By granting another opportunity to rectify the mistake in Form 35, the tribunal has balanced the need for procedural accuracy with the underlying principle of ensuring a just trial. This judgment can be seen as a progressive step in nurturing a more compassionate legal system that recognizes human error while upholding the law’s integrity.

FULL TEXT OF THE ORDER OF ITAT INDORE

1. This appeal by the assessee is directed against the order dated 30.12.2022 of Commissioner of Income Tax(Appeal), National Faceless Appeal Centre, Delhi for Assessment Year 2012-13.

2. None has appeared on behalf of the assesse and this appeal was called for hearing it transpires from the record that the notice issued to the assesse through speed post A.D. has been received back with the postal remark “the addressee is not available at the given address”. The notices issued to the assesse to the e-mail ID given in the form 36 were only delivered however, there is no response on behalf of the assesse. Accordingly the Bench proposes to hear and disposed of this appeal ex­parte. The assessee has raised following grounds of appeal:

“1. That on the facts and in the circumstances of the case, the decision of the learned lower authorities is contrary to law, materially incorrect, and unsustainable in law as well as facts. And that all the adverse findings recorded therein are opposed to facts, equity, and law.

2. That on the facts and in the circumstances of the case and in law, the initiation of proceedings u/s.147 of the IT Act is without jurisdiction and the issue of notice do not satisfy the judicial requirements of the law and, therefore, the assessment is bad in law and without jurisdiction hence the same be kindly cancelled.

3. That on the facts and in the circumstances of the case and in law, the learned lower authorities erred in their findings and treating the cash deposits into the savings bank account of the appellant Rs. 11,47,000.00 and transfer credit into the bank account of the assessee Rs. 5,37,309.00, as income of the assessee, such findings are wholly injudicious and opposed to facts and, be quashed and the addition of Rs. 16,84,809.00 as per para 6 & 7 of the order is wholly unjustified and unlawful and, therefore, the said unlawful and unjustified addition be kindly deleted.

4. That on the facts and in the circumstances of the case and in law, the learned lower authorities erred in their findings and estimating the income of the appellant at Rs. 20,55,088.00, total of all receipts as per Form No. 26AS, such findings are wholly injudicious and opposed to facts and therefore, be quashed and the addition of Rs. 20.55,088.00 as per para 8 & 9 of the order is wholly unjustified and unlawful and, therefore, the said unlawful and unjustified be kindly deleted.”

3. We have heard the Ld. DR and carefully perused the impugned order of the Ld. CIT(A). The CIT(A) has dismissed the appeal of the assesse on technical reason that grounds of appeal and form 35 are not matching to each other. The CIT(A) has dismissed the appeal that it is a deficient/defective appeal filed against show cause notice issued by the AO u/s 274 r.ws. 271(1)(b) of the Act. The relevant part of the impugned order is as under:

“I have carefully perused the Penalty notice, grounds of appeal and submissions of the appellant filed along with Form 35. On careful consideration of entire facts, it is observed that the present appeal suffers with serious deficiency, being appeal filed against notice u/s 274 read with Section 271(1)(b) of the Act, which is not an Order in accordance with Section 246A of the Act. Also, the Grounds of appeal raised and Statement of facts submitted in Form 35 are irrelevant to the notice appealed against. As a result, the present appeal has no legs to stand upon and cannot be adjudicated on merits of Grounds of appeal. Therefore, this appeal is dismissed, being a deficient appeal, without going into the merits of the Grounds of appeal.”

4. It is pertinent to note that the assesse has raised the grounds before the Ld. CIT(A) against the assessment order passed u/s 144 r.w.s 147 of the Act however, in the form 35 the assesse has mentioned section under which the order was passed by the ITO as 271(1) (b) of the Act. Thus, it is apparent that there is a mistake in form 35 if it is considered in light of the grounds of appeal raised by the assesse. Further in the statement of facts the assesse has clearly stated his grievance against the assessment order passed by the AO. Therefore, in the facts and circumstances of the case and in the interest of justice, we set aside the impugned order of the CIT(A) and remand the matter to the record of the Ld. CIT(A) to grant one more opportunity to the assessee to rectify the mistake in form 35 and then decide the appeal of the assesse on merits.

5. In the result, appeal of the assessee is allowed for statistical purposes.

The Order is pronounced in the open court on 18.07.2023.