Harland Clarke Holding Software India Private Limited, CHENNAI V. DCIT, CHENNAI

ITA 1224/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4549 (ITAT-CHENNAI)
• Duration Of Justice: 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SARATH KUMAR RAHA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO . 1224/MDS/2017 / ASSESSMENT YEAR : 2013-14 AND S.P.NO.166/MDS/2017 M/S. HARLAND CLARKE HOLDING SOFTWARE INDIA PVT. LTD., SUITE 305, DELTA WING, 3 RD FLOOR, RAHEJA TOWERS, 177 ANNA SALAI, CHENNAI 600 042. PAN: AAHCS4742D V. THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE 2(2), CHENNAI. ( /APPELLANT) ( /RESPONDENT) /APPELLANT BY : SHRI VIKRAM VIJAYARAGHAVAN, ADVOC ATE /RESPONDENT BY : SHRI SARATH KUMAR RAHA, JCIT /DATE OF HEARING : 19.05.2017 /DATE OF PRONOUNCEMENT : 19.05.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : WHEN THE STAY PETITION WAS TAKEN UP FOR HEARING S HRI VIKRAM VIJAYARAGHAVAN, THE LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE ASSESSEE FILED OBJECTION BEFORE THE DISPUTE RESOLUT ION PANEL (DRP) AGAINST THE DRAFT ASSESSMENT ORDER PASSED BY THE LD .AO ON 06.01.2017. THE DUE DATE FOR FILING THE OBJECTION BEFORE THE DRP WAS 07.01.2017. THERE WAS A DEFECT IN THE SIGNATURE OF THE ASSESSEE. ACCORDING TO THE LD. 2 ITA NO.1224/MDS/2017 & SP NOS. 166/MDS/2017 COUNSEL WHAT WAS FILED BEFORE THE DRP WAS A SCANNED COPY OF FORM 35A. THE ORIGINAL FORM 35A WITH DUE SIGNATURE WAS FILED O N 12.01.2017. THE DRP FOUND THAT THE ASSESSEE OUGHT TO HAVE FILED THE FORM 35A WITH DUE SIGNATURE ON OR BEFORE 07.01.2017. SINCE THE ORIGI NAL FORM 35A WITH DUE SIGNATURE WAS FILED ONLY ON 12.01.2017, THE OBJECTI ON FILED BY THE ASSESSEE WAS TREATED AS INVALID AND NON-EST. ACCORDING TO T HE LD. COUNSEL, THE SCANNED COPY FILED BY THE ASSESSEE ON 06.01.2017 WA S SUBSTITUTED BY THE ORIGINAL FORM 35A. FAILURE OF THE ASSESSEE TO AFFIX THE ORIGINAL SIGNATURE IN FORM 35A IS ONLY A DEFECT WHICH CAN BE CURED AT ANY POINT OF TIME. SINCE THE DEFECT WAS CURED ON 12.01.2017, IT RELATES BACK TO THE ORIGINAL DATE OF FILING I.E. 06.01.2017. HENCE, THE DRP OUGHT TO HA VE DISPOSED OFF THE OBJECTION ON MERIT. 2. ON THE CONTRARY, SHRI SARATH KUMAR RAHA, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT WHAT WAS FILED BEFORE THE DRP ON 06.01.2017 IS SCANNED COPY OF FORM 35A. IT DOES NOT CONTAIN THE ORIGINAL SIGNATURE OF THE ASSESSEE. THE ASSESSEE IN FACT FIL ED THE ORIGINAL FORM 35A WITH DUE SIGNATURE ON 12.01.2017. SINCE THERE WAS A DELAY IN FILING THE OBJECTION BEFORE THE DRP WITH ORIGINAL SIGNATURE, T HE DRP FOUND THAT THE DELAY IN NON-FILING OF FORM 35A WITH ORIGINAL SIGNAT URE CANNOT BE CONDONED. THEREFORE, THE DRP HAS RIGHTLY REJECTED THE OBJECTIO N OF THE ASSESSEE BY TREATING THE OBJECTION AS INVALID AND NON-EST. 3 ITA NO.1224/MDS/2017 & SP NOS. 166/MDS/2017 3. THE ISSUE ARISES BEFORE THIS TRIBUNAL IS WHETHER T HE OBJECTION FILED BY THE ASSESSEE IS VALID ONE OR NOT. THIS BEING A SIM PLE ISSUE BOTH THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR VERY FAIRLY SUBMITTED THAT THE APPEAL ITSELF CAN BE DISPOSED OFF INSTEAD OF THE ST AY PETITION. ACCORDINGLY BY CONSENT OF BOTH THE LD. COUNSEL FOR THE ASSESSEE AND THE LD.DR, THE APPEAL ITSELF IS TAKEN UP FOR HEARING. 4. ADMITTEDLY THE ASSESSEE FILED OBJECTION BEFORE T HE DRP ALONG WITH SCANNED COPY OF FORM 35A ON 06.01.2017. THE ASSESSEE OUGHT TO HAVE AFFIXED HIS ORIGINAL SIGNATURE IN FORM 35A. THEREFOR E THERE WAS A DEFECT IN FILING FORM 35A BEFORE THE DRP. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THE DEFECT IN FORM 35A CAN BE RECTIFIED IN A LATER STAGE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION, FAILURE OF TH E ASSESSEE TO AFFIX SIGNATURE IN ORIGINAL FORM 35A IS ONLY A CURABLE DEF ECT WHICH CAN BE RECTIFIED WHEN IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE BY THE DRP. IN FACT, THE ASSESSEE FILED THE ORIGINAL FORM 35A WITH DUE SIGNATURE ON 12.01.2017. HENCE, THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT THE ORIGINAL FORM 35A ALONG WITH DUE SIGNATURE FILED ON 12.01.2017 SUBSTITUTES THE OBJECTION FILED ON 06.01.2017 ALONG WITH SCANNE D COPY OF FORM 35A. IN OTHER WORDS, THE OBJECTION FILED IN FORM 35A WITH D UE SIGNATURE WOULD RELATE BACK TO THE ORIGINAL DATE OF FILING OF OBJECTION ON 06.01.2017. THEREFORE IT IS NOT A CASE OF DELAY AS CONTENDED BY THE LD.DR. IT IS A CASE OF RECTIFYING 4 ITA NO.1224/MDS/2017 & SP NOS. 166/MDS/2017 THE DEFECT IN FORM 35A. SINCE THE DEFECT WAS RECTI FIED, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DRP OUGHT TO HAVE D ISPOSED OFF THE APPEAL ON MERIT. ADMITTEDLY THE OBJECTIONS OF THE ASSESSE E WERE NOT DISPOSED OFF ON MERIT. THEREFORE THE ORDER OF THE DRP IS SET ASI DE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IN THE OBJECTION FILED BEFOR E THE DRP IS REMITTED BACK TO THE FILE OF THE DRP. THE DRP SHALL DISPOSE OFF THE OBJECTIONS RAISED BY THE ASSESSEE ON MERIT AFTER GIVING REASON ABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. HOWEVER THE STAY PETITION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MAY, 2017 AT CHENNAI. SD/- SD/- ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, /DATED, THE 19 TH MAY, 2017. JR. /COPY TO: 1. /PETITIONER 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. /GF.