TMI Blog2023 (3) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 20-3-2023 - Shri Satbeer Singh Godara, Judicial Member And Dr. Dipak P. Ripote, Accountant Member For the Assessee : Shri Nikhil Pathak For the Revenue : Shri M.G. Jasnani ORDER PER SATBEER SINGH GODARA, J.M. This assessee s appeal for assessment year 2011-12, arises against the CIT(A), National Faceless Appeal Centre [in short NFAC ] Delhi s order dated 06.07.2022, passed in Din and Order No. ITBA/NFAC/S/250/2022-23/1043751376 (1), involving proceedings under Section 154 of the Income Tax Act, 1961 (in short the Act ). Heard both the parties. Case file perused. 2. The assessee has raised the following substantive grounds in her instant appeal : The following grounds are taken without prejudice to each other On facts and in law, 1) The learned CIT(A) erred in confirming the enhancement of interest u/s 234A by a sum of Rs.54,65,481/- made by the A.O. in the order u/s 154. 2) 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 enhancing the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de before the higher forums. 5. 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 16.06.2021 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 01.08.2011 to 19.11.2018; coming to Rs.54,65,481/- 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. 5.1. The NFAC has affirmed the Assessing Officer s action to this effect as follows : 4. Determination : 4.1 The appellant has raised one ground of appeal challenging levy of interest u/s 234A(1)(a). I have carefully considered the order u/s 154, the grounds of appeal and the submissions of the appellant. 4.2 The relevant extracts of the order u/s 154 dated 16.06.2021 are as under : .. In this case, assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act, the original return is deemed to be submitted on 19.11.2018. The assessee is, therefore, liable for interest u/s 234A from the due date of filing of return of income to the date of filing of return of income, i.e., from 01.08.2011 to 19.11.2018 (87 months) in view of the provision of section 234A(1)(a) of the Act. 4.3. In view of the above discussion and the provisions of section 234A(1)(a), assessing officer is directed to levy interest u/s 234A for 87 months as computed in the order u/s 154 dated 16.06.2021. Accordingly, this ground of appeal is dismissed. No ground of appeal has been added, altered, modified or deleted. 5. In the result, the appeal is dismissed. Order passed under section 250 read with section 251 of the Act. 6. 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. Volkart Bros. [1971] 82 ITR 50 (SC). The assessee s former return dated 08.02.2013 was very much a valid one u/s.13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessee could not attach copies of the audited balance sheet and Profit and Loss A/c with the return, it could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rectification proceedings in issue. Both the learned lower authorities action to this effect stands reversed therefore. The a ..... 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