आदशे Order /

PER VIKRAM SINGH YADAV, A.M. :

This is an appeal filed by the Assessee against the order of the Ld. CIT(A)/NFAC Delhi dt. 08/12/2023 pertaining to Assessment Year 2017-18.

2. During the course of hearing, the Ld. AR submitted that the assessee filed its revised return of income declaring total income of Rs. 90,57,129/- which was processed by the CPC, Bangalore and thereafter, order under section 154 r.w.s 143(1) was passed on 06/01/2020 wherein certain adjustments were made by the CPC in terms of addition of Rs. 16,37,453/- on account of non- payment of Employees as well as Employers contribution to ESI Fund within the due date and disallowance of exempt income of Rs.

13,97,291/- being profit on sale of fixed assets.

2.1 It was submitted that against the said order, the assessee moved in appeal before the Ld. CIT(A), Ludhiana and thereafter the matter was transfer to NFAC, Delhi wherein the appeal of the assessee was dismissed on statistical ground without considering the merits of the case.

2.2 It was submitted that the Ld. CIT(A) dismissed the appeal stating that the appeal so filed was defective and the same cannot be adjudicated upon. It was submitted that the alleged defect which has been pointed out by the Ld. CIT(A) was that no order under section 143(3) has been attached alongwith the appeal documentation and there is an internal contradiction between the order uploaded by the assessee vis-a-vis what has been stated in Form No. 35.

2.3 In this regard, it was submitted that the assessee company has correctly uploaded the intimation order passed by the CPC, Bangalore under section 154 r.w.s 143(1) dt. 06/01/2020 and even the order number, DIN number and date of order are all correct in the memorandum of appeal. The only clerical mistake which has happened while filing the Form No. 35 was that at Sr. No. 2(a), the Section in which the order appealed against was to be stated, the assessee has wrongly stated order passed under section 143(3) instead of Section 154 r.w.s 143(1) of the Act. It was submitted that the assessee has uploaded the correct order Section 154 r.w.s 143(1) alongwith Form No. 35 and merely basis an error while mentioning the section number, the appeal of the assessee has been dismissed stating to be defective.

2.4 It was further submitted that no defect notice or opportunity has been provided by the Ld. CIT(A) to cure the defect and it was only on receipt of the order, the assessee came to know that such an order has been passed on account of defect. In support reliance, was placed on the Coordinate Bench decision in case of Haryana State Roads and Development Corporation Ltd. Vs. The DCIT in ITA NO. 582/Chd/2016 dt. 24/10/2017 wherein in absence of adequate opportunity to address the defect in the appeal Form filed by the assessee, the matter was restored to the file of the Ld. CIT(A) to be decided afresh after giving due opportunity to the assessee.

2.5 Further the Ld. AR has contested the findings of the Ld. CIT(A) wherein he has held that the defect, so pointed out, is not a curable defect and in this regard, the reference was drawn the provision of Section 292B of the Act wherein it is provided that no proceedings shall be deemed to be invalid merely by reason of any mistake, defect or omission, if such proceeding is in substance and in effect in conformity with or according to the intent and purpose of the Act.

2.6 It was further submitted that the clerical mistake in incorrectly mentioning the section number in the memorandum of appeal is attributed to the Counsel of the assessee and for the mistake occurred by the Counsel of the assessee, the assessee cannot be penalised.

2.7 It was accordingly submitted that in light of the aforesaid submissions, the assessee be allowed to file the corrected/amended Form No. 35 before the Ld. CIT(A) and the matter be heard on merits afresh after providing opportunity to the assessee.

3. Per contra, the Ld. DR has relied on the findings of the Ld. CIT(A). It