TaxTMI 
TaxTMI 
2016 (10) TMI 1310
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....er grounds to the file of the DRP / AO for decision. Therefore, to start with, we proceed to adjudicate the first four grounds which are reproduced as under:- "1. On the facts and circumstances of the case and in law, the Hon‟bel DRP erred in dismissing the application filed by the appellant in Form 35A in limine by holding that the application is invalid and non-est. 2. On the facts and circumstances of the case and in law, the Hon‟ble DRP erred in not adjudicating the appellant‟s case on merits. 3. On the facts and circumstances of the case and in law, the Hon‟ble DRP failed to appreciate that the defect pointed out was a curable defect and should have so held when the appellant had filed corrected Form 35A. 4. Without prejudice to the above, the Hon‟ble DRP failed to appreciate that treating the appellant‟s application as non-est rendered the assessment as time barred." 3. In connection with the above four grounds, the relevant facts are that the assessee filed the return of income declaring the total income of Rs. 19.08 Crs (rounded off). There was a revised return of income with the additional claims. T....
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....ring the above, DRP decided the priliminary issue about the maintainability of such application being a scanned copy of the original Form No.35A. The DRP discussed the assessee failure to replace the scanned copies with the original signed documents and debated on the negligence of the assessee. They also discussed the responsibility of the citizen to abide by the rules and procedures prescribed in the law. The DRP equated this defect / mistake to the fact of the return of income filed without signature. He also mentioned that the proceedings before the DRP constitute a "pre-assesssment proceedings‟. Further, stating that when the assessee failed to remove the defect in the return of income, the said return of income will be treated as non-est and the similar fact is attributed to the failing to file Form No.35A in original. Further, responding to the assessee‟s corrected application in Form No.35A, the DRP is of the opinion that the same is not proper as the proceedings 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 primaril....
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....the above cited facts, submissions and legal propositions etc. Ld Counsel for the assessee‟s arguments revolve around the following: (i) filing application before the DRP by way of scanned copy of From no.35A is a curable defect / irregularity. The provisions of section 292B of the Act support the same; (ii) assessee could not furnish the application in original due to the limitation of 30 days and it took time for sending the original application from Singapore to India. After receipt in India, the same could not be filed before the DRP due to the fact of change of the Authorized Representative in India to represent before the DRP; (iii) no defect notice / show cause notice was received by the assessee with intimation to remove the defects, if any, till the first hearing of the application by the DRP. Otherwise, Ld Counsel for the assessee brought our attention to various decisions and suggested institution of DRP was incorporated in the Statute to do away with the well 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 a....
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....e was accepted by the DRP. No defect notice was issued by the Revenue for period of at least 6 months (23.4.2013 to 13.11.2013). For the first time, a show cause notice was issued only during the hearing proceedings ie after hearing notice was issued in response to the said Form No. 35A, a scanned copy. Assessee replied to the same and he wanted to file the application in original and replace the existing "scanned copy‟ of the same. But, the same was rejected by the DRP. With above said factual matrix, now, we need to decide if the DRP is justified in treating the said scanned copy of application as non-est and also dismissing the application in limine. 9. On hearing the parties, we find, the following are some of the list of inadequacies from assessee's side: They are: 1. Failure to file the Form 35A ( a kind of appeal memo) in original instead of the scanned copy before the DRP, 2. Failure to replace the scanned copy by filing the same in original immediately thereafter; 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....
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.... it. Considering the same, we are of the considered opinion that the expression ie 'other proceedings', is residual and generic in nature and it is wide enough to include the present issue under consideration viz the proceeding of furnishing of application. Having held it so and in favour of the assessee, we need to decide if the furnishing of such scanned copy of the duly signed application in Form No 35A, constitutes a invalid one and not curable under this section. In this regard, we have examined if the such scanned copy is in sync, in substance, with the intent and purpose of the Act. We find there is no dispute on that part of the analysis and argument. Revenue's only objection is regarding furnishing of the application in scanned copy. Otherwise, the said scanned copy is meant for the assessee and for the purposes of the Act in all respects. Further, we find it is undisputed fact that, in response to the show cause notice, the assessee attempts to file the Form No 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 appli....