2023 (6) TMI 1327 - AT - Income Tax

Defective return - Defect notice issued u/s 139(9) - invalidating the return filed - non audit of books of accounts u/s 44AB - Error Description as Tax Payer has shown gross receipts or income under the head Profits and Gains of Business or Profession more than Rs.1 crore, however, the books of accounts have not been audited which was not done - assessee filed e-Nivaran Grievance , against which response communication was issued invalidating the return filed by the assessee. HELD THAT - Appealability of Defect notice - As held in the case of Deere Company 2021 (11) TMI 503 - ITAT PUNE has held that the defect notice issued u/s 139(9) is having effect of creating liability under the Act, which the assessee denies or would jeopardize refund. Hence it will get covered within the ambit of sec. 246A(1)(a) of the Act. Defect notice issued u/s 139(9) is appealable, if the assessee denies its liability or if it would jeopardise the refund. As A.R submitted that the refund of about Rs.5.00 lakhs is stuck in this year due to non-processing of return of income filed by the assessee, we hold that the defect notice issued u/s 139(9) is appealable one. Accordingly, we set aside the order passed by Ld CIT(A) and hold that the assessee could file appeal in the instant case. Liability to get its accounts audited u/s 44AB - On a perusal of the Profit and Loss account of the assessee for the year under consideration, we notice that the gross business receipts which is less than the threshold limit of Rs.1.00 crore prescribed u/s 44AB of the Act for getting the accounts audited. The Statement of Total income furnished by the assessee would show that the other income has been declared either under the head Capital gains or under the head Other Sources. Hence, there is merit in the submission of the assessee that it is not required to get its accounts audited u/s 44AB of the Act. Accordingly, we are of the view that the defect notice issued by CPC u/s 139(9) of the Act is not in accordance with law and accordingly, we quash the said defect notice, meaning thereby, the return of income filed by the assessee should be considered as valid return. Thus response given under E-Nivaran would get nullified. Accordingly, we direct the AO/CPC to treat the return of income filed by the assessee as valid return and process the same in accordance with law. Appeal of assessee allowed.

Summary

Issues:
The judgment involves the issue of appeal against a defect notice under section 139(9) of the Income Tax Act and the issue of whether the accounts of the assessee need to be audited under section 44AB of the Act.

Appeal Against Defect Notice under Section 139(9):
The assessee, a stock broker, filed an appeal challenging a defect notice issued by the CPC under section 139(9) of the Act, which mentioned an error related to the gross receipts exceeding Rs.1 crore without audit. The first appellate authority dismissed the appeal, stating there is no provision to appeal against such a defect notice. However, the ITAT Mumbai, referring to a decision by the Pune bench of ITAT, held that the defect notice is appealable if it denies liability or jeopardizes a refund. The ITAT allowed the appeal, stating that the defect notice is appealable and directed the return to be processed.

Accounts Audit Requirement under Section 44AB:
The assessee argued that their accounts do not require an audit under section 44AB as the gross business receipts were below the threshold limit and other income was declared under different heads. The ITAT examined the Profit and Loss account and agreed with the assessee's position. The ITAT concluded that the defect notice issued by the CPC was not in accordance with the law, quashed the notice, and directed the return to be considered valid and processed accordingly.

Conclusion:
The ITAT Mumbai allowed the appeal filed by the assessee, stating that the defect notice under section 139(9) is appealable and directing the processing of the return. Additionally, the ITAT found that the accounts of the assessee did not require an audit under section 44AB, nullified the defect notice, and directed the authorities to treat the return as valid for processing.