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TMI Blog2019 (9) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... was justified in allowing carry forward of loss of Rs. 12,61,94,699/ - when the original return filed by the assessee cannot be considered as valid return as the assessee filed its return without enclosing audit report in Form No. 3CEB and failed to submit the audit report required u/s. 92E of the Act along with the return of income. ii) Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in not considering the section 92E & Section 139(9) (e) of the IT Act 1961 & IT Rule Form 3CEB in particular relating to international transactions and specified domestic transaction where it is clearly mentioned in action point no. 3 that Form 3EB must be furnished on or before the due date applicable to such pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defect the return would become invalid. In the present case, the assessee has not filed mandatory audit report in Form No. 3CEB within the specified time. Hence, the return of income has become invalid. The ld. DR prayed for reversing the findings of Commissioner of Income Tax (Appeals) in allowing relief to the assessee on merits and holding the return of income as valid. 5. On the other hand Shri Nikhil Pathak appearing on behalf of the assessee submitted that the assessee during the period relevant to the assessment year under appeal has entered into international transactions. Thus, the provisions of section 92CA of the Act were attracted. The assessee filed its return of income for the impugned assessment year on 30-09-2018 decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of such intimation. However, in the present case, no such notice was issued to the assessee by Assessing Officer for removing the defects. On the contrary the Assessing Officer initiated penalty proceedings u/s. 271BA for none filing of report in Form No. 3CEB. The Assessing Officer vide order dated 25-04-2011 levied penalty of Rs. 1 lakh u/s. 271BA of the Act. The ld. AR further contended that at the time of framing assessment it was very much in the knowledge of the Assessing Officer that the assessee has failed to file report in Form 3CEB, despite that the Assessing Officer proceeded with the assessment and passed the assessment order on 07-12-2011. There was no fresh tangible material that had come to the notice of Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the 82[Assessing] Officer may, in his discretion, allow; and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Act, the return shall be treated as an invalid return and the provisions of this Act shall apply as if the assessee had failed to furnish the return : Provided that where the assessee rectifies the defect after the expiry of the said period of fifteen days or the further period allowed, but before the assessment is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : clause (e) of sub-section (9) of section 139 of the Act. The assessee has filed Audit Report in Form 3CB. De hors the nature of Audit Report filed by the assessee, after examining the documents filed along with the return of income, the Assessing Officer was duty bound to intimate the defect, if any in return. In the absence of any intimation to the assessee regarding defect in the return of income, the Assessing Officer cannot declare the return invalid. We do not find any merit in the grounds raised by the Revenue. The same are dismissed, accordingly. 9. The assessee has filed an application under Rule 27 assailing the action of Commissioner of Income Tax (Appeals) in upholding validity of reopening u/s. 148 of the Act. 10. A perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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