TMI Blog2000 (8) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(1)(a) and issued intimation thereunder to the assessee wherein the Assessing Officer treated the status of assessee as AOP and not as Registered Firm. The assessee then preferred application under section 154 dated 28-12-1993 seeking rectification of the intimation by way of treating the assessee as a Registered Firm. The Assessing Officer vide his order under, section 154 dated 4-1-1994 rejected the assessee's application thereupon the assessee preferred appeal before CIT(A) who vide his order dated 16-5-1994 set aside the Assessing Officer's order dated 4-1-1994 passed under section 154 and restored the matter to Assessing Officer with certain direction with respect to defect under section 139(9) and rectification of the defec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned above. He has contended that the various kinds of defects with respect to which notice for rectification of the defect can be issued under section 139(9) are enumerated in explanation under subsection (9) of section 139 and that the defect of the kind involved in this appeal is not mentioned in clauses (a) to (f) of the said Explanation. He has contended that the CIT(A)'s direction to Assessing Officer to the effect that Assessing Officer should allow an opportunity to the assessee for filing duly certified partnership deed and thus to remove the defect is not in accordance with law. He has contended that the ITO's order should be restored. As against this the Id. A.R. of assessee has contended that the Id. CIT(A) had issued direction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and contended that upto 31-5-1994 there was no appeal against intimation issued under section 143(1)(a). He has contended that Incometax Act has made distinction between assessment and intimation for many purposes. He has contended that the Assessing Officer could invoke section 184 only while making regular assessment under section 143(3) and not while making summary assessment. In rejoinder the learned D.R. of Revenue has contended that under section 184(1) read with Explanation under sub-section (2) of section 184, provision regarding furnishing copy of the partnership-deed certified by all the partners of the firm to be a certified copy is mandatory as the word 'shall' has been used in the provision. He has contended that under sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowered to point out the defect, if any, in the IT return under section 139(9) and can allow the assessee to rectify the defect. He has also observed that the Assessing Officer is not justified in not allowing the claim of RF to the appellant-assessee without complying with section 139(9) to allow appellant opportunity to rectify the defect. In our opinion, non-furnishing of a copy of the partnership-deed duly certified to be a copy by the signatures of all the partners put on the copy is not enumerated in any of the clauses of explanation below section 139(9) no doubt but such a defect is certainly a technical defect in as much as the original partnership-deed already remains filed on record before the Assessing Officer initially when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be furnished so as to facilitate the rectification of the said mistake/error/anomaly. For this view of ours, we also get support from CBDT's Circular No. 669 dated 25-10-1993 (204 ITR ST 105) which provides that where the sums refer-red to in the first proviso under section 43B had in fact been paid on or before the due dates mentioned therein, but the evidence therefor had been omitted to be furnished alongwth the return the Assessing Officer can entertain applications under section 154 for rectification of the intimation and decide the same on merits. Obviously this Circular impliedly permits the furnishing of evidence supportive of the payment which the assessee had failed to furnish earlier although the payment had in fact been made bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not covered within the ambit of permissible prima facie adjustments enumerated in proviso to section 143(1)(a) as has been propounded judicially by ITAT Delhi. 11. In view of our above discussion, we find no merit in the contentions raised on behalf of the Revenue and we find the impugned order of learned CIT(Appeals) dated 16-5-1994 to be quite in accordance with law and justified. We need, therefore, make no interference therein. 12. Now we take up assessee's appeal being appeal No. 65 (JDPR)/97. The contention of learned A.R. of assessee has been that the Assessing Officer was bound by the directions of learned CIT(A) given in his appellate order dated 16-5-1994 and accordingly the Assessing Officer was bound to rectify the defec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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