TMI Blog2016 (10) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... s for rejecting the Original Application attempted to be filed by the assessee in response to the show cause notice. Thus, in our opinion, the expression 'other proceedings' is wider enough to cover the present defect or omission of replacing the scanned copy with the original in time. We order AO accordingly. As per assessee original Form No.35A could not be furnished to replace the scanned copy which is already with DRP, within the prescribed time of 30 days for the reasons as the assessee geographically located in Singapore; the signed original application could not be received in India in time; to meet the dead lines, assessee filed the application with colour scanned copy of Form No.35 with the intention to replace the same with the original one at the time of hearing before the DRP; and there was a change in the tax consultant / AR of the assessee and the responsibility of replacing the scanned copy with the original application has missed inadvertently. As discussed above, we find, the same is not without reason and the same being the change in the Representative. As such, the furnishing of the scanned papers and replacing them with hard copies or soft copie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r grounds, the relevant facts are that the assessee filed the return of income declaring the total income of ₹ 19.08 Crs (rounded off). There was a revised return of income with the additional claims. The other facts include that the assessee was having transactions with Associated Enterprises (AEs) and therefore, the same were referred to TPO for determining the Arms Length Price (ALP). TPO did not make any adjustments. However, there were other issues raised by the AO in the assessment relating to the advertisement, business connections, existence of PE, taxability of interest income etc and the draft assessment was made vide the draft assessment order dated 25.3.2012 u/s 143(3) read with section 144C(13) of the Act. Eventually, AO determined the total income of the assessee at ₹ 282.48 Crs (rounded off). Otherwise, assessee is engaged in Media‟ business. 4. Assessee filed its objections to the DRP in Form No.35A on 23.4.2013. However, the Form No. 35A filed by the assessee is only a scanned copy containing the signature of the concerned person. Before the DRP, the maintainability of the scanned copy of the Form No.35 (said application) came up for discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings before the DRP are different from thus before the appellate authority under the Statute and they are only preassessment proceedings‟. Therefore, the decisions cited by the assessee which primarily relates to the proceedings before the CIT (A) are distinguishable on facts. Further, responding to the AR‟s argument to treat the assessment proceedings as time barred‟ as copy of Form No.35A filed before the AO was also a scanned copy and the AO should have considered the same as non-est‟ and therefore, completed the assessment by holding that the assessee had not opted for filing the objections before the DRP. In reply, the DRP took notice of the assessee‟s intimation to the AO about its intention to file the objections before the DRP and concluded that the assessment order is not time barred. Eventually, DRP held that the scanned copy application of Form No.35A is invalid and non-est. Accordingly, DRP dismissed the application in limine. Relevant lines from the DRP‟s direction dated 4.12.2013 (at page 10 and 11) are extracted as under:- ...............It is trite law that an application made before any authority under prescription of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l existed proceedings before the first appellate authority ie CIT (A). The DRP proceedings constitute appellate proceedings‟ in substance and therefore, the events relatable to the removable of defects are equally applicable to the DRP. Referring to the assessee‟s efforts in sending scanned copies of the application to the DRP, Ld Counsel for the assessee submitted that assessee‟s intention is undisputedly clear and they want to exploit the right of filing application before the DRP seeking directions to the AO. Taking clue from the DRP‟s order, Ld Counsel for the assessee argued by stating that the assessment order made by the AO on 10.1.2014 should be treated time barred if the impugned application to the DRP is treated as non-est‟. Elaborating the same, Ld Counsel for the assessee submitted that the DRP cannot dismiss the application as non-est and treated the assessment order as valid one. He also mentioned that this issue has come up for judicial scrutiny for the first time and they are not binding / persuasive precedents on this issue. Finally, he submitted that the application filed on 13.4.2013 is otherwise complete in all respects as it is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter; 3. Notwithstanding, assessee fails to pray for the condonation of delay, if any, in filing the said Form No 35A, and 4. Failure of maintaining the continued flow of information to the newly appointed AR of the assessee. Assessee changed the AR for dealing with the DRP related matters after the scanned copy was filed. 10. Further, some of the list of inadequacies from Revenue side include: 1. Failure to reject the Form No.35A in scanned copy at the threshold stage itself, and why the officers have not taken any action on the said defect Form No. 35A and also against the erring officials / officers; 2. Failure to issue an appropriate defect notice at appropriate time calling for removal of the defect, if any, without waiting for more than 7 long months ie till the date of hearing of the application before the DRP. DRP issued a show cause notice for the first time only during the hearing proceedings, 3. Failure in appreciating the same when the scanned copy of Form No. 35A is otherwise in order in all respects bearing correct signature of the person, who is duly authorised in this regard, etc. 11. In the light of the above stated factual position, we proceed to analys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 35A in original and however, the same was not successfully allowed by the DRP. Rather, the DRP preferred to act on the said scanned copy of Form No 35A unfairly and considered the said the scanned application as non-est. Further, it is relevant to mention that the DRP failed to provide the written reasons for rejecting the Original Application attempted to be filed by the assessee in response to the show cause notice. 13. Thus, in our opinion, the expression 'other proceedings' is wider enough to cover the present defect or omission of replacing the scanned copy with the original in time. We order AO accordingly. B. Intension of the Assessee: 14. We have analysed the conduct and mind of the assessee and find the activities suggest inescapably that assessee wants to make use of the benefits of the office of DRP. They are: preparedness of the relevant papers in Form no 35A, signed the same in time, scanned them, sent the office in India for filing before the DRP and ensured filing them before the expiry of the due date ie within 30 days from the date of the draft order of the AO. In that case, why the same was not replaced by the assessee by filing Original Form No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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