9911796707
TMI Blog2023 (3) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enhancing the interest u/s 234A did not constitute mistake apparent from record and therefore, the order u/s 154 was bad in law and needs to be cancelled. 3) The learned CIT(A) further failed to appreciate that - a. The original return filed without payment of tax could not be treated as a defective return and accordingly, the asst, had become time barred and such time barred asst, could not be reopened u/s.147. b. Interest u/s 234A was not correctly levied in the order u/s 154. c. Without prejudice, the interest u/s 234A could be levied only up to the date of filing the original return i.e. 08.02.2013 and not till 19.11.2018 i.e. the date of filing the return in response to notice u/s. 148. 4) The appellant requests for cancellation of the order u/s 154 passed by the A.O. as the rectification order of an invalid reasst. is bad in law, the issue involved did not constitute mistake apparent from record and also because the enhancement of interest u/s 234A was not warranted. 5) The appellant craves leave to add, alter, amend or delete any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2 The relevant extracts of the order u/s 154 dated 16.06.2021 are as under : " ..... In this case, assessment order under section 143(3) of the Income Tax Act, 1961 has been passed on 30.11.2018 assessing total income at Rs.3,33,54,241/- for assessment year 2011-12. Accordingly, tax was determined at Rs.68,31,848/- and interest under section 234A, 234B & 234C was calculated at Rs.4,78,226/-, Rs.64,55,075/- & Rs.2,52,779/- respectively. As regards interest u/s 234A, it should have been levied for delay of 87 months which works out to Rs.59,43,707/- and calculated from the due date of return of income, i.e. 01.08.2011 to the date of filing of return of income treated as filed on 19.11.2018. It is seen that interest under section 234A was charged short of Rs.54,65,481/- (Rs.59,43,707/- - Rs.4,78,226/-) in the aforesaid order. The same constitutes mistake apparent from record in view of the provisions of Section 234A of the Act. 2. Subsequently, the proposed rectification was conveyed to the assessee vide letter no. ITBA/COM/F/17/2021-22/1033354852(1) dated 09.06.2021 and requested to offer its say. In response, the assessee vide its letter dated 14.06.2021 filed its applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1971] 82 ITR 50 (SC). The assessee's former return dated 08.02.2013 was very much a valid one u/s.139(9A) read with Explanation(c)(i) thereto as per this tribunal's coordinate bench's order in Meters and Instruments Pvt. Ltd., vs. Inspecting Assistant Commissioner [1991] 39 ITD 269 (Del.) and, therefore, both the lower authorities have wrongly held the same as a defective and invalid return. Learned counsel lastly posed challenge to validity of sec.148 proceedings itself that in case the assessee's former return is held to be a valid one which declared taxable income from capital gains of Rs.3,33,54,241/-, there would not be any occasion for the Assessing Officer to record his reasons of the same having escaped assessment. 7. Mr. Jasnani on the other hand vehemently supported both the learned lower authorities action levying sec.234A interest in sec.154 rectification in light of CIT vs. Pranoy Roy & Anr. [2009] 309 ITR 231 (SC); CIT vs. Kotak Mahindra Finance Limited [2004] 265 ITR 119 (Bom.) and this tribunal's recent adjudication in Dhirendra Narbheram Sheth vs. ITO, Ward-2(3)(5), Rajkot [2023] 147 taxmann.com 150 (Rajkot). His case before us is that the assessee all along has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tach copies of the audited balance sheet and Profit and Loss A/c with the return, it could be said that he was prevented by sufficient cause for late submission of return. 8. We have given a very careful consideration to the arguments of the Ld. Counsel for the assessee, but do not find any force in the same. As rightly pointed out by the Ld. D.R., clause (c) of Explanation to section 139(9) uses the expression "tax, if any" claimed to have been at source or in advance or on self-assessment. In other words, if the assessee claims to have paid any tax either at source or by way of advance tax or on self-assessment, but does not attach proof of having made such payments then the return could legitimately be treated as invalid, if the assessee did not remove the defect within 15 days of the receipt of the intimation from the Assessing Officer. The bare reading of the Explanation to section 139(9) leaves us in no doubt that what is expected of the assessee is to attach challans of payments which are claimed to have been made by the assessee and not in respect of payments which should have been made were not made by the assessee. If the assessee had not made any payments which he shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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