TMI Blog2015 (5) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... ons - Decided in favour of assessee. - ITA 190 OF 2009 - - - Dated:- 24-2-2015 - GIRISH CHANDRA GUPTA AND ARINDAM SINHA, JJ. For The Appellant : Mrs. Smita Das De, Advocate For The Respondent : Mr. R.N. Bajoria, Sr. Advocate, Mr. A. Gupta, Advocate and Mr. M. Ghorawat, Advocate ORDER The Court : The subject matter of challenge in this appeal, at the instance of revenue, is a judgement and order dated 13th February, 2009 by which the learned Tribunal agreeing with the CIT (Appeal) held that omission to file certified copy of the instrument of change in the partnership deed along with the return was not fatal and therefore, did not attract the consequences laid down in Section 185 of the Income Tax Act. Aggrieved by the order of the learned Tribunal, the revenue has come up in appeal. The following question of law was framed at the time of admission of the appeal : Whether on the facts and in the circumstances of the case, the learned Tribunal was justified in overlooking the factum of non-filing of reconstituted partnership deed along with the returns as required under section 184(4) of the Income Tax Act, 1961 ? . The question may be reframed as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim of the assessee. Section 292B of the Act provides that merely by reason of any mistake, defect or omission in such return of income, assessment, etc. shall not be invalid or shall not be deemed to be invalid. The Hon'ble Kerala High Court has held in the case of CIT -vs- Masoneilan (India) Ltd. [242 ITR 569] that section 292B provides that no return of income shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income if it is in substance and effect in conformity with or according to the intent and purpose of the Act. It is further observed that section 139 also throws some light on the question, if there is any defect, the A.O. is required to give an opportunity to the assessee to rectify the defect within a stipulated time. We are of the considered view that the purpose of filing the copy of the changes in the partnership deed before the A.O. is to enable the A.O. to examine as to whether there is a genuine partnership in existence and the remuneration being paid to the partners is properly distributed and paid in accordance with the partnership deed. Furnishing of certified copy of the revised instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it one way or other. The Hon'ble Kerala High Court has also held in the case of CIT-vs- G. Krishnan Nair [259 ITR 727] that filing of the audit report to claim deduction under section 80HHC (4A) of the Act is only directly in name and it can be filed at any time before the completion of the assessment. We are also of the considered view that the filing of the revised/changed instrument of partnership deed along with the return is directory in nature and it can be filed at any time before completion of the assessment by the A.O. We do not agree with the Ld. D.R. that after the amendment by the Finance Act, 2003, non filing of instrument of partnership deed along with the return will make the claim of the assessee illegal so as to deny the claim of the assessee though the requisite details and the evidence is made available to the A.O. before he completes the assessment. The Hon ble Delhi High Court has also held in the case of Remfry Sons - vs.- CIT [276 ITR - 1] that non filing of the partnership deed is an irregularity and is a curable defect, which gets cured by filing the same in the assessment proceedings. Further the Hon ble jurisdictional High Court in the case of Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have not been impressed by such submission. We are of the opinion that the view taken by the learned Tribunal is the correct view. We may add further reasons why the view taken by the learned Tribunal is unimpeachable. The assessee is required to file return under subsection 1 of Section 139 within the time prescribed therein. What is the time prescribed has been dealt with in Explanation 2 appended to sub-section 1 of section 139. This requirement of law has to be held subject to the provision of sub-section 4 which permits an assessee to file a return at any time before the expiry of one year from the end of relevant assessment year or even before the completion of the assessment whichever is earlier. The Apex Court in the case of CIT, Punjab v. Kulu Valley Transport Co.P.Ltd., reported in 77 ITR 518 held that sub-section 3 of section 22 is to be read as a proviso to sub-section 1 of section 22. Sub-section 1 of section 22 is in pari materia with sub-section 1 of section 139. The relevant portion of the said judgement reads as follows : It can well be said that section 22(3) is merely a proviso to section 22(1). Thus, a return submitted at any time before assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
