Order declaring return invalid u/s 139(9) of Income Tax Act is not appealable

Order declaring return invalid u/s 139(9) of Income Tax Act not appealable

In a recent judgment, the Hon’ble ITAT Rajkot has held that order passed declaring return of income invalid under section 139(9) of the Income Tax Act 1961 is not appealable and consequently the appeal filed by the assessee against such order is not maintainable.

ABCAUS Case Law Citation:
ABCAUS 4041 (2024) (05) ITAT

In the instant case, the assessee had challenged the order passed by the CIT(A), National Faceless Appeal Centre (NFAC) in holding that appeal filed was not maintainable.

The appellant assessee, a HUF, filed return of income for the year under consideration declaring a loss. It was noticed by the Centralised Processing Centre (CPC) that the assessee had not filed the balance sheet and profit & loss account in Part-A of the ITR and had not gotten its books of accounts audited.

The CPC treated the return as defective and assessee was intimated regarding the defects in ITR and required to rectify the said mistake within 15 days but the assessee failed to response. Hence the ITR filed by the assessee was held as invalid vide order passed under section 139(9) of the Income Tax Act, 1961 (the Act).

The aggrieved assessee preferred an appeal before the learned CIT(A).

The CIT(A) found that the assessee in form-35 claimed that the appeal was filed against the order under section 143(1) of the Act whereas the return of income filed by the assessee was held invalid due to certain defects vide order passed under section 139(9) of the Act.

The CIT(A) observed that the provision of section 246A of the Act clearly defines the appealable orders made under the different provisions of the Act. However, the order under section 139(9) of the Act does not find place in the list of appealable orders specified under section 246A of the Act.

The CIT(A) further observed that the Hon’ble Allahabad High Court had held that the order passed under section 139(9) of the Act is not an appealable order. Hence the CIT(A) in view of the above rejected the appeal of the assessee as not appealable.

Before the Tribunal, the assessee contended that the CIT-A ought to have adjudicated the ground of appeal of the assessee on merit instead of dismissing the same on technical grounds.

The Tribunal observed that We the controversy whether the order passed under section 139(9) of the Act is an appealable order or not had been addressed by the Hon’ble Allahabad High Court holding that section 246 which makes certain orders appealable before the first appellate authority and contains a list of appealable orders, an order passed under section 139(9) does not find place. Meaning thereby, an order passed under section 139(9) is not appealable.

The Hon’ble High Court further observed that it is settled that the right to file an appeal is a statutory remedy. Unless an order is made appealable under the statute, no appeal can be filed or entertained.

In view of the above, the Tribunal opined that the order passed by the AO under section 139(9) of the Act is not appealable and consequently the appeal filed by the assessee against such order is not maintainable.

Accordingly, the appeal filed by the assessee was dismissed.

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