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TMI Blog2023 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... both the parties. Case file perused. 2. Delay of 37 days in filing of the instant appeal is condoned as per the assessee's duly sworn in affidavit attributing reasons thereof to communication gap(s) at various levels. Hon'ble apex court's landmark decision Collector, Land Acquisition vs., MST Katiji [1987] 167 ITR 471 (SC) has settled the law long back that all such technical aspects must make way for the cause of substantial justice. The Revenue has also not been able to rebut the assessee's foregoing averments. The impugned delay of 37 days in filing of the instant appeal stands condoned therefore. 3. The assessee has raised the following substantive grounds in his instant appeal : "The following grounds are taken without prejudice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) 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. 6) The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal." 4. We take note of the basic relevant facts regarding the assessee's sole substantive grievance raised in the instant appeal that both the learned lower authorities have erred in law and on facts in raising sec.234A interest demand of Rs.30,77,569/- in issue in sec.154 rectification proceedings. 5. There is hardly any dispute between the parties that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2018; coming to Rs.30,77,569/- 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. 6.1. The "NFAC" has affirmed the Assessing Officer's action to this effect as follows : 7. 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.139(9A) read with Explanation(c)(i) thereto as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hardly dispute that sec.139(9) of the Act is a specific provision wherein an Assessing Officer could held a return as a defective one after following the due procedure as per Explanation (c) (i) thereto which treats a return filed by an assessee to be defective only if there is self-assessment tax claimed to have been paid and not otherwise. It is in this factual backdrop that the tribunal's learned coordinate bench in Meters and Instruments Pvt. Ltd., (supra) has carved out a clear-cut distinction between cases where an assessee claims payment of tax and otherwise as follows : "7. The argument of the Ld. Counsel for the assessee in this regard is very simple. According to him, return of income has to be accompanied by certain documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nowh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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