2023 (5) TMI 54

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....for the cause of substantial justice. The Revenue has also not been able to rebut the assessee's foregoing averments. The impugned delay of 37 days in filing of the instant appeal stands condoned therefore. 3. The assessee has raised the following substantive grounds in his instant appeal : "The following grounds are taken without prejudice to each other - On facts and in law, 1) The appellant requests for condonation of delay in filing this appeal. 1A) The appellant did not receive the order of CIT(A) on the registered e-mail as per Form No. 35 and therefore, he was unaware of the order of the CIT(A) till his C.A. checked the status from the IT Portal which was only a few days back and hence, the delay in filing the appeal which may kindly be condoned. 2) The learned CIT(A) erred in confirming the enhancement of interest u/s 234A by a sum of Rs.30,77,569/- made by the A.O. in the order u/s. 154. 3) The learned CIT(A) failed to appreciate that - a. As the order of asst, u/s 147 itself was null and void, the order u/s 154 rectifying the mistake in that asst, order is bad in law. b. The issue involved of enhan....

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.... want of any challenge made before the higher forums. 6. Now comes the issue of sec.154 rectification for the purpose of levying sec.234A interest which gets attracted on account of an assessee's default in furnishing return of income. The Assessing Officer passed his sec.154 rectification order in issue dated 18.06.2021 making it clear that once the "due date" of filing of return in assessment year 2011-12 before us was 01.08.2011. And that the assessee's former return dated 08.02.2013 was a defective; null and void u/s.139(9) of the Act which attracts sec.234A interest from 08.02.2013 to 19.11.2018; coming to Rs.30,77,569/- in question. It is in this manner that the Assessing Officer has rectified his above re-assessment for the purpose of levying sec.234A interest. 6.1. The "NFAC" has affirmed the Assessing Officer's action to this effect as follows : 7. Mr. Pathak vehemently argued during the course of hearing that both the lower authorities have erred in law and on facts in initiating sec.154 rectification proceedings on such a debatable issue of validity of the assessee's former return dated 08.02.2013 which is not sustainable in law as per T.S. Balram, ITO vs. Volka....

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....y certain documents as detailed in section 139(9) of the Act. Inviting our attention to Explanation to section 139(9), it was submitted that the return has also to be accompanied by proof of advance tax and self-assessment tax. Elaborating the submission, the Ld. Counsel argued that if the assessee filed a return of income without attaching the proof of advance tax or self-assessment tax then the return would be a defective one and if the assessee could not remove the defect within 15 days from the date of receipt of intimation from the Assessing Officer then such a return shall be treated as an invalid return. The Ld. Counsel for the assessee pointed out that because of financial stringency the assessee could not make the payment of advance tax before the expiry of the relevant financial year. It was further submitted that the same tight financial position continued even when the return had to be filed and that the assessee's bank account was attached and the payments were recovered by the department by and by. Reliance was also placed on the Tribunal's decision in the case of Hazarimal Lalooram (supra) in which it was held that where the books of account were not audited and the ....

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....eturn in time." 9.1. We further observe that there is yet another provision in the Act i.e., sec.140A providing for consequences of non-payment of self-assessment tax as well as penalty u/s.221. And that such a default also results in non-admission of an assessee's appeal u/s.249(4) of the Act before the CIT(A) concerned. The purpose of quoting all these statutory provisions which apply in the corresponding specified facts and circumstances. Sec.139(9) read with [Explanation hereinabove] is also a self-contained code for the purpose of declaring a return as a defective and invalid one. Mr. Jasnani could hardly dispute that no such action had never been taken against the assessee. He took us to the Assessing Officer's re-assessment discussion at page-1 dated 30.11.2018 and that the latter had indeed issued notice for payment of self-assessment tax. We find no merit in the instant arguments since the same was nowhere an intimation u/s.139(9) of the Act. That being the case, we are of the opinion that the assessee's above former return dated 08.02.2013 could not have been treated as a defective one so as to trigger applicability of sec.234A interest herein levied in sec.154 rectifi....

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....er section 144, on the amount of the tax on the total income as determined under sub-section (1) of section 143, and where a regular assessment is made, on the amount of the tax on the total income determined under regular assessment, as reduced by the amount of,- (i) advance tax, if any, paid; COME TAX DEPARTMENT (ii) any tax deducted or collected at source; (iia) any relief of tax allowed under section 89; (iii) any relief of tax allowed under section 90 on account of tax paid in a country outside India; (iv) any relief of tax allowed under section 90A on account of tax paid in a specified territory outside India referred to in that section; (v) any deduction, from the Indian income-tax payable, allowed under section 91, on account of tax paid in a country outside India; and (vi) any tax credit allowed to be set off in accordance with the provisions of section 115JAA or section 115JD. Explanation 1.-In this section, "due date" means the date specified in sub-section (1) of section 139 as applicable in the case of the assessee. 15[Explanation 2.-In this sub-section,- (i) "tax on total income as determined under sub-section (....