9911796707
TMI Blog1998 (10) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... been deducted at source and tax on self-assessment "claimed to have been paid". It was also stated that if the defects were not rectified within 15 days of the date of receipt of the notice, the return filed will be treated as invalid and non-est. The time granted for compliance was extended from time to time. The petitioner also went on seeking time submitting that certificates of tax deducted at source were not received from some of the companies which he was trying to secure. On March 6, 1996, the assessee was given a last opportunity of removing the defects latest by March 12, 1996. On March 13, 1996, the Assessing Officer passed an order (annexure P-5), the operative part whereof reads as under : "According to the provision of section 139(9)(c) the return is to be accompanied by proof of payment made under section 140A. In spite of time allowed by the notice under section 139(9) and extension of time allowed on his own request, the assessee has failed to produce the proof of payment. Hence, the return of income filed by the assessee vide R. No. 0179 on October 31, 1995, is treated as invalid and non-est." On March 26, 1996, the petitioner preferred a revision to the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) forming an opinion that the return having not been accompanied by proof of payment of tax under section 140A and the defect having not been removed in spite of opportunities having been allowed for the purpose the return was rightly declared invalid and non-est. On March 13, 1996, a notice under section 142(1) of the Act was also issued to the petitioner requiring him to file the return of income. The petitioner in compliance with such notice filed a return on April 15, 1997, which was processed under section 143(1)(a) of the Act. The assessment was finalised. The exact date on which the order of assessment was made is not available on record. Learned counsel for the petitioner has submitted that the amount of tax having been deposited before an order of assessment was framed, the Assessing Officer should have applied his mind to the facts and circumstances of the case and then taken a decision whether the delay in depositing the amount of tax could be condoned without regard to the fact that the tax was not deposited along with the return. It was further submitted that non-furnishing of proof of payment of tax under section 140A along with return could not have been treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the expiry of the said period of fifteen days or the further period allowed, but before the assessment is made, the Assessing Officer may condone the delay and treat the return as a valid return. Explanation.---For the purposes of this sub-section, a return of income shall be regarded as defective unless all the following conditions are fulfilled, namely :---. . . (c) The return is accompanied by proof of--- (i) the tax, if any, claimed to have been deducted at source and the advance tax and tax on self-assessment, if any, claimed to have been paid ; " Failure to follow any of the conditions (a) to (f) listed in the Explanation appended to sub-section (9) of section 139 does not invalidate the return to begin with ; the return is rendered defective merely. The defect can be rectified. The defect has to be intimated to the assessee and an opportunity to rectify the defect has to be afforded. The time to be afforded for rectification is 15 days which is capable of being extended by the Assessing Officer in his discretion subject to an application being made in this behalf. If the defect is not rectified within the period allowed, the return shall be liable to be invalidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by the Income-tax Officer, but before the assessment is made, the Income-tax Officer may condone the delay and treat the return as a valid return. Thus, in a case where the defect is not rectified within the time allowed but the assessee rectifies the same before the Income-tax Officer has completed the assessment, it will not be open to the assessee to question the validity of the assessment made by the Income-tax Officer on the ground that the defect had not been rectified within the time allowed and accordingly the return filed by him was invalid." Learned senior counsel for the petitioners submitted that the phraseology employed by sub-clause (i) of clause (c) of the Explanation indicates that if tax on self-assessment has been paid then only the return has to be accompanied by proof of tax having been paid. If the tax is not claimed to have been paid then, the non-furnishing of proof of payment cannot be a defect in filing the return. He, therefore, submitted that the return was not defective. Such an argument cannot be accepted for it would lead to an absurdity. The return filed by a person who has paid the tax but not filed the proof thereof shall be defective but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proviso to sub-section (9) of section 139 to the petitioner does not arise. Section 264 confers a wide jurisdiction on the Commissioner. It provides that excepting where section 263 applies, the Commissioner may suo motu or on an application by the assessee call for the record of any proceeding under this Act in which an order has been passed by an authority subordinate to him and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act may pass such order thereon, not being an order prejudicial to the assessee as he thinks fit. The nature of the power conferred on the Commissioner is very wide. But it is not so wide as is in the case of an appeal. At the same time, the overriding restriction on the power of the Commissioner is to act "subject to the provisions of the Act". Pari materia provisions contained in sales tax law came up for the consideration of their Lordships in at least two cases, namely, State of Kerala v. K. M. Cheria Abdulla and Co., AIR 1965 SC 1585 ; [1965] 16 STC 875 and Swastik Oil Mills Ltd. v. H. B. Munshi, Deputy CST [1968] 21 STC 383 (SC). The following principles are deducible therefrom : (i) A revising ..... X X X X Extracts X X X X X X X X Extracts X X X X
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