Mere Mistake in Form 35 does not result in Deficient Appeal: ITAT grants another Opportunity to rectify Mistake [Read Order]

The Indore bench of the Income Tax Appellate Tribunal (ITAT) held that the mere mistake in form 35 does not result in a deficient appeal hence allowed one more opportunity to the assessee to rectify the mistake in form 35.

The assessee did not appear and the appeal was called for hearing it transpires from the record that the notice issued to the assessee through speed post-A.D. has been received back with the postal remark “the addressee is not available at the given address”.

The notice was issued to the assessee’s e-mail ID given in the form 36 was only delivered however, there is no response on behalf of the assessee. Accordingly, the Bench proposes to hear and dispose of this appeal exparte.

The Commissioner of Income Tax (Appeal) has dismissed the appeal of the assessee on the technical reason that the grounds of appeal and form 35 are not matching to each other. The Commissioner of Income Tax (Appeals) has dismissed the appeal that it is a deficient or defective appeal filed against the show cause notice issued by the Assessing Officer under Section 274 read with order 271(1)(b) of the Income Tax Act.

It was noted that the assessee has raised the grounds before the Commissioner of Income Tax (Appeals) against the assessment order passed under Section 144 read with Section 147 of the Income Tax Act however, in form 35 the assessee has mentioned section under which the order was passed by the ITO as Section 271(1)(b) of the Income Tax 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 assessee. Further in the statement of facts the assessee has clearly stated his grievance against the assessment order passed by the Assessing Officer.

The Two-bench member comprising of Vijay Pal Rao (Judicial member) and B.M. Biyani (Accountant member) set aside the impugned order of the Commissioner of Income Tax (Appeals) and remanded the matter to the record of the Commissioner of Income Tax (Appeals) to grant one more opportunity to the assessee to rectify the mistake in form 35 and then decide the appeal of the assessee on merits.

Thus, the appeal of the assessee was allowed for statistical purposes.

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Vijesh Samule vs ITO , 2023 TAXSCAN (ITAT) 1870