01 April 2017
one of my client has been late deposited TDS beyond the due date prescribed u/s 139(1), hence i disallowed TDS u/s 43B and also disallowance has been made by us u/s 40(a)(ia) @ 30% of expenses. and i file Tax audit report accordingly but my client in his ITR does not take such disallowance and pay the required tax without considering any amount of disallowance..and upload his ITR. my question is that, in such case can department considered his ITR as defective u/s 139(9)?? as these return is filled without considering disallowance which was expressly disallowed by tax auditor in his 3CA-3CD. and hence his self assessment tax is remain under paid.
01 April 2017
As mentioned by you, you have disallowed claim of TDS US 43B and 30% of the expenditure US 40a(ia) because the TDS was deposited after the due date as specified US 139(1).
Hence this resulted in disallowance of expenditure and an increase un taxable income.
However the assessee ignored this and paid tax as per his own calculation.
Assuming that disallowance is proper the assessee has paid less SA Tax.
According to Section 140A if the assessee fails to pay the whole of tax and interest applicable thereon he is deemed to be an assessee in default and all the provisions of the act shall apply accordingly.
As per Section 139(9) a return of income shall deemed to be defective if the assessee fails to pay the tax in accordance with Section 140A.
Since in your case he has paid less tax he has not complied with the provisions of Section 140A and hence his return is defective as per Section 139(9).
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