Aug 252013
 

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Appeal before CIT(A) sign and dating of appeal memo. Un dated and signed by scanned signature appeal memo are curable defects. – Income Tax – Direct Tax Code – DTC – By: – C.A. DEV KUMAR KOTHARI – Dated:- 26-4-2010 – Links: Section 140, 246A, 249 of the income Tax Act, 1961. Rule 45 of the income Tax Rules 1962. Form 35 of the Income Tax Rules 1962. Appeal before CIT(A): An appeal before CIT(A) is required to be filed in form no. 35 which is prescribed under Rule 45 of the Income Tax Rules. Rule 45: Form of appeal to Commissioner (Appeals). Appeal is to be filed in Form no. 35, it contains, inter alia details about assessee, the A.O., order appealed against, other pending appeals before CIT(A) ,statement of facts, and grounds of appeal. The form has to be signed at several places, and at last there is form of verification which is required to be signed, dated and place of signing is to be mentioned. As per Rule it must be signed by the person who is authorized to sign return of income under section 140, as may be applicable in the case of assessee. Verification and signature: The signature is to be made in natural way by a pen which usually contain ink which is not erasable. A digital signature (electronic signature) is not yet recognized for this purpose. Signature in form of rubber stamp of signature is also not permissible. Scanned signature is also not recognized. Technical defects: In case any appeal, application, petitions etc. is filed which suffers from any technical defect, then the applicant can rectify such defect. A technical defect or irregularity is not fatal to the petition, appeal etc. When a technical defect is rectified, it is assumed that corrected petition or appeal was filed and the filing relates back to the original filing. Sometimes a new set of documents may be filed, in that case also the new one replaces the old/ defective one. It is not that the new documents are a new appeal or petition. It is always advisable to clearly mention in the covering letter or by way of note below the revised appeal or petition that the new document is being filed to remove technical or other defect in the originally filed appeal or petition. Opportunity to remove technical defect: The technical lapse can occur due to several reasons. Furthermore, the Rules and procedures are changed so frequently that one may not be fully aware of latest position. Therefore, it is advisable to seek opportunity to remove technical defects, if any, in documents while filing appeal. The request can be mentioned in covering letter or by way of note on accompanying documents as may be found suitable in any given case. The authority concerned is also require to point out technical defects, if any, and to allow a reasonable opportunity to remove such defects within a reasonable time. This may be specifically provided or even in absence of specific provision, the rule of natural justice requires that the concerned authority should provide a reasonable opportunity. Recent case before ITAT: In Cairn Energy India West BV v. ADIT (ITA Nos. 86,457 & 459/Ahd./2010) decided on March 26, 2010 and reported as [2010] 3 taxmann.com 94 (Ahd. – ITAT) the appellant filed appeal on which date was not mentioned and the signature was not in natural manner. The signature was scanned signature, but it belonged to an authorized person who could sign return and thus could sign appeal documents. The appeals were filed timely. Thus there were only two technical defects or irregularities namely: Form 35 was not signed in normal manner but was signed through scanned signature. Form 35 was not dated. (Per author- It is not clear from report but this can be a case that appeal documents were sent by email to signatory, who printed it , signed and then sent back scanned documents by email/ fax and those were filed, accidentally the date was not mentioned while signing. Or that some pages bearing signature of person were scanned and stored in computer and used for appeal documents). During course of hearing assessee had filed another set of form 35 duly signed by pen of the authorized person in normal manner. These were filed to remove technical defect in form 35 originally filed and not as fresh appeal. CIT(A) dismissed originally filed appeals as not signed and dated. The CIT(A) also treated fresh set of form 35 filed during hearing as separate appeals and dismissed them for the reason that original demand notice was not filed with them. Learned CIT(A) ignored the fact that original demand notice was filed with the originally filed appeal and fresh form 35 was presented just to remove technical defect or irregularities. On appeal Tribunal inter alia held as follows: a. heard both the parties, gone through the orders of the authorities below and also perused the material placed before Tribunal. b. It is pertinent to note that all the appeals were signed, filed in time and were in the prescribed form. c. These forms were signed by the person who is duly authorized, though borne scanned – signature. (Per author- thus Tribunal considered documents duly signed). d. The mere fact that the assessee has not stated the date in appeal (s) memo and appeals were filed by the scanned-signature, appeals can only said to be irregularity/defective and said irregular/defec………………

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