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?
No. The Tribunal held that both returns were defective under s.139(9) because the self-assessment tax had not been paid, that the Assessing Officer should have directed the assessee to rectify the defect and had issued no defect notice at all, and that the assessment could not simply be built on the original return. The entire assessment was set aside and the officer directed to pass a fresh order under s.144.
Decided by the ITAT (Amit Shukla, Judicial Member (SMC Bench)) on 2022-04-19, reported as ITA No. 6244/Del/2018, assessment year 2015-16. It bears on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 140A, section 144, section 44AD, section 139(5) of the Income Tax Act 1961, in Assessment & Scrutiny, Presumptive Taxation & Audit and Appeals matters.
It is the mirror image of the usual complaint. Here the officer never issued the s.139(9) notice and the assessee was assessed on a figure from a return that was defective on the face of it. Where the department has skipped the notice, the assessment made on the strength of that return does not survive.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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The assessee supplied readymade chaat food items and filed an original return for assessment year 2015-16 on 25 February 2016 declaring income of Rs. 29,35,650 under s.44AD. He filed a further return on 6 September 2016 declaring Rs. 6,04,520. Neither return was accompanied by payment of the self-assessment tax. The assessee said the original return had been filed without his knowledge. The Assessing Officer rejected that and assessed the income at Rs. 29,35,650 on the basis of the original return by order dated 27 June 2018. The Commissioner (Appeals) confirmed. No notice under s.139(9) had been issued by the Assessing Officer.
The appeal was allowed. Both the original return and the later return were defective under s.139(9) for want of payment of the self-assessment tax (para 6). The entire assessment was set aside and the matter remanded to the Assessing Officer to pass a fresh assessment order under s.144 in accordance with law, after giving adequate opportunity of hearing (para 8).
The Tribunal recorded that neither return carried the pre-paid or self-assessment taxes, so both answered the description of a defective return under s.139(9), and that no defect notice under s.139(9) had been issued by the Assessing Officer. It set out the CBDT letter of 12 December 2017 and the proviso to s.139(9), under which the assessee may rectify the defect before the assessment is made and the officer may condone the delay. Since the officer had neither given the assessee the opportunity the section requires nor proceeded on the footing that no valid return existed, the assessment as framed could not stand, and the correct course was a fresh assessment under s.144.
Thus, both original return and so called revised return were defective as per the provision of Section 139(9) of the Act
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Handle my notice → Ask a CA on WhatsAppNo. The Tribunal held that both returns were defective under s.139(9) because the self-assessment tax had not been paid, that the Assessing Officer should have directed the assessee to rectify the defect and had issued no defect notice at all, and that the assessment could not simply be built on the original return. The entire assessment was set aside and the officer directed to pass a fresh order under s.144. This was decided by the ITAT (Amit Shukla, Judicial Member (SMC Bench)) and bears on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 140A, section 144, section 44AD, section 139(5) of the Income Tax Act 1961. It is reported as ITA No. 6244/Del/2018, assessment year 2015-16. It is the mirror image of the usual complaint. Here the officer never issued the s.139(9) notice and the assessee was assessed on a figure from a return that was defective on the face of it. Where the department has skipped the notice, the assessment made on the strength of that return does not survive. If it applies to you, the first step is this: Check whether a s.139(9) notice was in fact issued; the assessment order and the case records will show it, and its absence is a ground.
The assessee supplied readymade chaat food items and filed an original return for assessment year 2015-16 on 25 February 2016 declaring income of Rs. 29,35,650 under s.44AD. He filed a further return on 6 September 2016 declaring Rs. 6,04,520. Neither return was accompanied by payment of the self-assessment tax. The assessee said the original return had been filed without his knowledge. The Assessing Officer rejected that and assessed the income at Rs. 29,35,650 on the basis of the original return by order dated 27 June 2018. The Commissioner (Appeals) confirmed. No notice under s.139(9) had been issued by the Assessing Officer. The matter was decided on 2022-04-19 by the ITAT (Amit Shukla, Judicial Member (SMC Bench)). On those facts the ITAT held as follows. The appeal was allowed. Both the original return and the later return were defective under s.139(9) for want of payment of the self-assessment tax (para 6). The entire assessment was set aside and the matter remanded to the Assessing Officer to pass a fresh assessment order under s.144 in accordance with law, after giving adequate opportunity of hearing (para 8).
The Tribunal recorded that neither return carried the pre-paid or self-assessment taxes, so both answered the description of a defective return under s.139(9), and that no defect notice under s.139(9) had been issued by the Assessing Officer. It set out the CBDT letter of 12 December 2017 and the proviso to s.139(9), under which the assessee may rectify the defect before the assessment is made and the officer may condone the delay. Since the officer had neither given the assessee the opportunity the section requires nor proceeded on the footing that no valid return existed, the assessment as framed could not stand, and the correct course was a fresh assessment under s.144. In the words reproduced by the source cited on this page: "Thus, both original return and so called revised return were defective as per the provision of Section 139(9) of the Act"
It was decided by the ITAT on 2022-04-19 and is reported as ITA No. 6244/Del/2018, assessment year 2015-16. 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 139(9) Explanation, section 140A, section 144, section 44AD, section 139(5), 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 cuts both ways and is cited by both sides. The appeal was allowed. Both the original return and the later return were defective under s.139(9) for want of payment of the self-assessment tax (para 6). The entire assessment was set aside and the matter remanded to the Assessing Officer to pass a fresh assessment order under s.144 in accordance with law, after giving adequate opportunity of hearing (para 8). It arises in Assessment & Scrutiny, Presumptive Taxation & Audit and Appeals matters, on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 140A, section 144, section 44AD, section 139(5) of the Income Tax Act 1961, and was decided by Amit Shukla, Judicial Member (SMC Bench). 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 defect is unpaid self-assessment tax under s.140A, say so expressly rather than arguing only about the figure returned. Be aware of what the relief looks like: the assessment is set aside for a fresh order under s.144, not deleted, so the merits still have to be met. If you are contending that a return was filed without your authority, produce the material on that at the earliest stage; it was rejected here.
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 located. A companion appeal, Kavita Gupta v. ITO, Ward-34(5), New Delhi (ITA No. 6243/Del/2018, decided 16 December 2024 by Satbeer Singh Godara, Judicial Member), was disposed of on the same reasoning and with the same direction for a fresh assessment under s.144. 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 companion order in Kavita Gupta (ITA No. 6243/Del/2018) records the same dates and the same two figures, Rs. 29,35,650 and Rs. 6,04,520, as this order. That could not be reconciled on the copies read and may be a transcription of the narrative from one order into the other; the direction in each is the same. This was an SMC Bench decided by a single Member. No reporter citation appears on the copy read. 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.
The appeal was allowed. Both the original return and the later return were defective under s.139(9) for want of payment of the self-assessment tax (para 6). The entire assessment was set aside and the matter remanded to the Assessing Officer to pass a fresh assessment order under s.144 in accordance with law, after giving adequate opportunity of hearing (para 8).
TaxSphere, “Niranjan Lal Gupta v ITO”, https://taxnotice.vittsphere.com/caselaw/case/niranjan-lal-gupta-v-ito-139-9-notice-never-issued/ (validity last checked 2026-09-17)
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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 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?
You missed the fifteen days on a s.139(9) notice and the officer has written back that your return is invalid. Is there anything left to do?
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?
