Decided on October 19,1994



N.K. Agrawal, Judicial Member - (1.) THESE are two appeals by the two assessees but since the question is common, both these appeals are being decided by this common order.
(2.) ITANO. 1332/Chd./89 relates to the assessment year 1982-83 and ITA No. 1335/Chd./89 pertains to assessment year 1986-87. The only ground raised in both the appeals relates to the order of the CIT (Appeals) rejecting the assessee's appeals on the ground that the demand notice was not filed by the assessee along with the memorandum of appeal. The assessees filed appeals before the first appellate authority in Form No. 35. The photostat copy of the demand notice was filed with the memorandum of appeal (Form No. 35). The CIT (Appeals) was of the view that the requirement of law had not been complied with and, therefore, the appeals in both the cases were rejected being invalid.
(3.) THE Id. counsel for the assessee has submitted before us that Section 249(1) required the assessee to file an appeal in the prescribed form verified in the prescribed manner. This provision did not require the assessee to file the notice of demand either in original or its copy. Section 249(1) reads as under :- Section 249(1) - Every appeal under this Chapter shall be in the prescribed form and shall be verified in the prescribed manner. It would be thus clear that the express provision contained in the Act nowhere required the assessee to enclose the notice of demand along with the prescribed form. Rule 45(1) of the Income-tax Rules, 1962 was the relevant rule which laid down the form in which the appeal is to be filed before the Deputy Commissioner (Appeals) or the Commissioner (Appeals). Rule 45(1) reads as under :- Rule 45(1) - An appeal to the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals), shall be made in the Form No. 35. Here again, there is no requirement to file any document along with the form in which the appeal is to be drafted. THE Id. counsel has thus argued that the two substantive provisions contained in Section 249(1) and rule 45(1) have to be looked into in order to ascertain if the assessee was under an obligation in law to file any demand notice along with the memorandum of appeal. Now we can advert to Form No. 35 which is the prescribed form. Form No. 35, which has been prescribed under rule 45(1) contains certain particulars which are to be entered by the assessee. THEre is a form of verification at the foot of Form No. 35 and thereafter, the following notes have been given :- 1. THE form of appeal, grounds of appeal and the form of verification appended thereto shall be signed by a person in accordance with the provisions of rule 45(2). 2. THE memo, of appeal, statement of facts and the grounds of appeal must be in duplicate and should be accompanied by a copy of the order appealed against and the notice of demand in original, if any. 3. Delete the inappropriate words. It would be apparent from Note No. 2, as reproduced above, that the memorandum of appeal has to be filed in duplicate and it should be accompanied by the statement of facts, grounds of appeal, copy of the order appealed against and the notice of demand in original. It is on this basis that the first appellate authority appears to have rejected the assessee's appeals in both the cases on the ground that the notice of demand in original was not enclosed with the memorandum of appeal.;

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