The officer treated some of your s.153A returns as defective for non-payment of self-assessment tax and others as valid, on the same facts. Can the Tribunal put that right?
The Tribunal directed the Assessing Officer to treat the returns as valid, by condoning the delay, for those years in which the defect had in fact been removed. The proviso to s.139(9) was the source of the direction: where the defect is cured before the assessment is made, the delay can be condoned and the return treated as valid.
Decided by the ITAT (Chandra Mohan Garg, Judicial Member and Girish Agrawal, Accountant Member) on 2022-08-30, reported as IT(SS)A Nos. 63 to 69/PAN/2018, assessment years 2008-09 to 2014-15. It bears on section 139(9), section 139(9) proviso, section 153A, section 140A, section 143(2) of the Income Tax Act 1961, in Assessment & Scrutiny, Search, Survey & Block Assessment and Appeals matters.
It is a worked example of the proviso being used where the officer had not used it. Where the department has accepted the cure for some years and refused it for others on identical facts, the inconsistency is the argument, and the proviso is the machinery that fixes it.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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Following a search, the assessee filed returns for assessment years 2008-09 to 2014-15 in response to notices under s.153A. Self-assessment tax was deposited on 30 and 31 March 2016. The Assessing Officer treated the returns for three years as defective under s.139(9) because the tax had not been paid within fifteen days of the defect intimation, and issued no notice under s.143(2) for those years. For the remaining four years the returns were treated as valid once the deposit was acknowledged. For assessment year 2008-09 the s.139(9) notice was dated 11 March 2016 and gave the assessee until 25 March 2016 to rectify. The dates of the notices for 2009-10 and 2014-15 are not given in the order.
All seven appeals were allowed for statistical purposes. The Tribunal directed the Assessing Officer to treat as valid returns those returns in which the defects had been removed by the assessee, by condoning the delay, and remitted the matter for assessment de novo (para 11).
The Tribunal set out the proviso to s.139(9), under which an assessee who rectifies the defect after the fifteen days or the further period allowed but before the assessment is made may have the delay condoned and the return treated as valid. On the facts the tax had been deposited and the defect removed, and the department had itself acted on that footing for four of the seven years. The Tribunal therefore found it proper to direct the officer to take the same course for the remaining years and to proceed afresh.
The ld. AO to treat the said returns as valid returns where the defects have
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Handle my notice → Ask a CA on WhatsAppThe Tribunal directed the Assessing Officer to treat the returns as valid, by condoning the delay, for those years in which the defect had in fact been removed. The proviso to s.139(9) was the source of the direction: where the defect is cured before the assessment is made, the delay can be condoned and the return treated as valid. This was decided by the ITAT (Chandra Mohan Garg, Judicial Member and Girish Agrawal, Accountant Member) and bears on section 139(9), section 139(9) proviso, section 153A, section 140A, section 143(2) of the Income Tax Act 1961. It is reported as IT(SS)A Nos. 63 to 69/PAN/2018, assessment years 2008-09 to 2014-15. It is a worked example of the proviso being used where the officer had not used it. Where the department has accepted the cure for some years and refused it for others on identical facts, the inconsistency is the argument, and the proviso is the machinery that fixes it. If it applies to you, the first step is this: Set out, year by year, the date of the s.139(9) notice, the date the defect was removed and the date of the assessment order.
Following a search, the assessee filed returns for assessment years 2008-09 to 2014-15 in response to notices under s.153A. Self-assessment tax was deposited on 30 and 31 March 2016. The Assessing Officer treated the returns for three years as defective under s.139(9) because the tax had not been paid within fifteen days of the defect intimation, and issued no notice under s.143(2) for those years. For the remaining four years the returns were treated as valid once the deposit was acknowledged. For assessment year 2008-09 the s.139(9) notice was dated 11 March 2016 and gave the assessee until 25 March 2016 to rectify. The dates of the notices for 2009-10 and 2014-15 are not given in the order. The matter was decided on 2022-08-30 by the ITAT (Chandra Mohan Garg, Judicial Member and Girish Agrawal, Accountant Member). On those facts the ITAT held as follows. All seven appeals were allowed for statistical purposes. The Tribunal directed the Assessing Officer to treat as valid returns those returns in which the defects had been removed by the assessee, by condoning the delay, and remitted the matter for assessment de novo (para 11).
The Tribunal set out the proviso to s.139(9), under which an assessee who rectifies the defect after the fifteen days or the further period allowed but before the assessment is made may have the delay condoned and the return treated as valid. On the facts the tax had been deposited and the defect removed, and the department had itself acted on that footing for four of the seven years. The Tribunal therefore found it proper to direct the officer to take the same course for the remaining years and to proceed afresh. In the words reproduced by the source cited on this page: "The ld. AO to treat the said returns as valid returns where the defects have"
It was decided by the ITAT on 2022-08-30 and is reported as IT(SS)A Nos. 63 to 69/PAN/2018, assessment years 2008-09 to 2014-15. Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section 139(9), section 139(9) proviso, section 153A, section 140A, section 143(2), the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. All seven appeals were allowed for statistical purposes. The Tribunal directed the Assessing Officer to treat as valid returns those returns in which the defects had been removed by the assessee, by condoning the delay, and remitted the matter for assessment de novo (para 11). It arises in Assessment & Scrutiny, Search, Survey & Block Assessment and Appeals matters, on section 139(9), section 139(9) proviso, section 153A, section 140A, section 143(2) of the Income Tax Act 1961, and was decided by Chandra Mohan Garg, Judicial Member and Girish Agrawal, Accountant Member. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Where the department has accepted the cure for one year on the same facts, put the inconsistency in the grounds. Ask expressly for a direction that the Assessing Officer condone the delay under the proviso and treat the returns as valid, rather than asking only for the assessment to be set aside. Where no s.143(2) notice was issued for the years treated as defective, take that as a separate jurisdictional ground.
Searched for later treatment; none was found. That is not the same as a source affirming it. No later order applying, doubting or dissenting from this one was found on indiankanoon. It is a 2022 Tribunal order on a fact-specific direction and is unlikely to have been cited. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The direction is quoted in fragment because the fetch layer truncates quotation near 125 characters; the full sentence read, on the copy opened, that the Tribunal found it proper to direct the Assessing Officer to treat the said returns as valid returns where the defects had been removed by the assessee, by condoning the delay. The order does not identify which of the seven years fell on which side beyond naming 2008-09, 2009-10 and 2014-15 as the years treated as defective. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
All seven appeals were allowed for statistical purposes. The Tribunal directed the Assessing Officer to treat as valid returns those returns in which the defects had been removed by the assessee, by condoning the delay, and remitted the matter for assessment de novo (para 11).
TaxSphere, “Francisco X. Pacheco v DCIT”, https://taxnotice.vittsphere.com/caselaw/case/francisco-pacheco-v-dcit-139-9-proviso-direction-to-condone/ (validity last checked 2026-09-17)
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You never asked the Assessing Officer for more time, the return went invalid for want of proof of tax, and you have gone to the Commissioner under s.264. Will that work?
Neither your original nor your revised return carried the self-assessment tax. The officer ignored that and assessed you on the original return. Is the assessment good?
The officer declared your return invalid for non-payment of self-assessment tax and then assessed you under s.143(3) starting from the figures in that very return. Can he do both?
You cured a s.139(9) defect months after filing. Does the six-month clock for the s.143(2) notice run from the original return or from the corrected one?
