Whether form 35A verified by the authorized representative (advocate of the Assessee) is legal?

 

The Finance Act, 2009 introduced with effect from 01.10.2009 an alternate dispute resolution mechanism to facilitate expeditious resolution of disputes in tax related matters for foreign companies and for transfer pricing matters. Further, the Central Board of Direct Taxes (CBDT) has also notified the Rules, viz., Income-tax (Dispute Resolution Panel) Rules, 2009 for establishing the Dispute Resolution Panels (DRP) and the framework for the proceeding [vide Notification S.O. No. 2958(E)/2009/ F.No.142/22/2009-TPL].

 

Also, the same was integrated in Faceless Scheme by CBDT vide notification no 6 & 7 of 2021 dated 17th February 2021 which provides an option for eligible assessee to approach the DRP after passing of draft assessment order under Faceless Scheme.

 

The eligible assessee may file objections before the Dispute Resolution Panel against draft assessment order passed by the Assessing Officer within 30 days of receipt of draft assessment order.

 

Hon’ble Mumbai ITAT has an occasion to consider the issue of signing of the appeal form by the Authorized signatories in the case of Bridge India Fund (ITA Nos. 457 & 458/Mum/2023).

 

As per the Tribunal, Rule 4 (1) of Income Tax Dispute Resolution Rules provides that the objection, if any, of the eligible assessee to the draft order may be filed in person or through his agent within the specified period in form number 35A.

In short, Rule 4 (1) does not talk about the verification part of form number 35A but merely talks about who shall file the form.

There is a basic distinction between the person who is filing the form and the person who is making a verification of the form.

It was also provided by the Tribunal that the declaration that the particulars mentioned in the Form are true can only be provided by an assessee and not his authorized representative, since they cannot be privy to information about the truthfulness of facts stated in that form.

Further, in the present case the Authority based on which the advocate verified form number 35A was not produced before the Court and as such the assessee failed to show that the authorized representative was any way connected and authorized to verify form number 35A.

Although, the Tribunal provided the above finding, however, on the grounds of natural justice, the Tribunal allowed the assessee to again file the objections before DRP, in accordance with the law, for fresh adjudication.

Readers may draw similar analogy for Form 35 also and other forms filed before the Income Tax Authorities.

 

The copy of the order is as under:

 

1691497604-457 & 458 M 23 Bridge India Fund_SD (1)