9911796707
TMI Blog2002 (10) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner submitted its return of income for the accounting year 1993-94 in the assessment year 1994-95 on November 30, 1994, declaring loss of Rs. 5,03,250 on estimated basis as statutory audit of the company was pending for want of appointment of auditors by the Comptroller and Auditor General of India. The Deputy Commissioner of Income-tax issued a notice on June 15, 1995, under section 139(9) of the Act, 1961, intimating the petitioner, the defect in the return filed on November 30, 1994 and called upon the petitioner to rectify the defect by submitting the statutory audit report under section 44AB of the Act, 1961 by July 7, 1995. The petitioner on June 6, 1995, prayed that it was not possible for the petitioner to submit the audit report as desired by the Deputy Commissioner for want of appointment of auditors by the Comptroller and Auditor General of India. It was requested that some more time be allowed in view of the provisions contained in section 139(9) of the Act, 1961, for submitting the audit report. The Deputy Commissioner of Income-tax did not accede to the prayer and refused to grant further time and sent an intimation P 7 on July 12, 1995 and treated the return a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed by the petitioner contending that the Assessing Officer issued a notice under section 139(9) of the Act, 1961, on June 15, 1995, to remove the defects in the return and to submit the tax audit report under section 44AB by July 7, 1995. The assessee vide his letter P 6, dated July 6, 1995, sought extension of time for submitting the audit report without any justification. The Assessing Officer having afforded ample opportunities to the assessee for the aforesaid purpose regretted to extend the time, vide its intimation P 7, dated July 12, 1995 and accordingly, processed the return which was ultimately held to be invalid. The order P 10 passed in revision is self-contained, explanatory and well-reasoned order and does not call for any interference in the writ jurisdiction by this court. The assessee failed to comply with the provisions of section 44AB of the Act, 1961. The Assessing Officer was justified in not allowing further extension of time beyond the period of fifteen days for submission of statutory audit under section 139(9) of the Act, 1961. The petitioner cannot claim any relief on the ground that audit report under section 44AB was received on May 9, 1996. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired by section 44AB of the Act, 1961, on May 9, 1996. The return was filed by the petitioner on November 30, 1994. Thus, it was not possible for the petitioner to have annexed the report of the statutory auditor appointed by the Comptroller and Auditor-General of India as the appointment itself was made on January 31, 1995, as per letter P 3. No doubt about it that the time was given to the petitioner to rectify the defects within 15 days by issuing a notice P 5 under section 139(9) of the Act, 1961. The petitioner prayed for extension of time by filing a reply P 6 on July 6, 1995, and submitted that the audit is going on and the auditors were appointed in February, 1995. Hence, some more time was prayed for to file the revised return along with the tax audit report for the assessment year 1994-95 and the petitioner may not be treated as in default in filing the return under section 139(9) of the Act, 1961. Intimation P 7 was sent to the petitioner on July 12, 1995, that the assessment is to be completed under section 144 of the Act, 1961, after the return losses its validity, in the eye of law under section 139(9) of the Act, 1961, enough time has passed after the time-limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every person, carrying on business shall, if his total sales, turnover or gross receipts, as the case may be, in business exceed or exceeds forty lakh rupees in any previous year or carrying on profession shall, if his gross receipts in profession exceed ten lakh rupees in any previous year or carrying on the business shall, if the profits and gains from the business are deemed to be the profits and gains of such person under section 44AD or section 44AE or section 44AF, as the case may be, and he has claimed his income to be lower than the profits or gains so deemed to be the profits and gains of his business, as the case may be, in any previous year, get his accounts of such previous year audited by an accountant before the specified date and furnish by that date the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed. Provided further that in a case where such person is required by or under any other law to get his accounts audited, it shall be sufficient compliance with the provisions of this section if such person gets the accounts of such business or profession audited under such law b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether such chief executive officer is known as secretary or by any other designation) of every political party shall, if the total income in respect of which the political party is assessable (the total income for this purpose being computed under this Act without giving effect to the provisions of section 13A) exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and all the provisions of this Act, shall, so far as may be, apply as if it were a return required to be furnished under sub-section (1). (9) Where the Assessing Officer considers that the return of income furnished by the assessee is defective, he may intimate the defect to the assessee and give him an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the Assessing Officer may, in his discretion, allow; and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return is accompanied by the report of the audit referred to in section 44AB, or, where the report has been furnished prior to the furnishing of the return, by a copy of such report together with proof of furnishing the report. Thus, it is clear that the return filed by the petitioner on November 30, 1994, was defective within the meaning of Explanation (bb) to section 139(9) of the Act, 1961. For the accounting year 1993-94, the assessment year is 1994-95 and the last date of filing the return, in the case of companies as provided in section 139(1) is November 30, of the assessment year. The return in this case was filed on the due date. The return can be filed on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such of the particulars as prescribed. The statutory auditors were appointed on January 30, 1995. The audit was completed on March 2, 1996. The report was finalized as required by section 44AB of the Act on May 9, 1996. The period for assessment had not expired by the time the report was filed on November 14, 1996, before the Deputy Commissioner of Income-tax. The petitioner had submitted the revised position and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the defect is rectified after the said period of 15 days or the further period allowed but before the assessment is made. The Assessing Officer may condone the delay and treat the return as a valid return. Thus, the defect can be removed even after the expiry of 15 days or the further period allowed notwithstanding consequence of treating the return as invalid and no return filed as provided in the main sub-section (9) of section 139 of the Act, 1961. Thus, in my opinion, as per section 139(9) the period allowed to remove the defect can be extended to a date before the making of assessment whereas section 139(4) provides the limitation for filing the return before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment whichever is earlier. Under the proviso to sub-section (9) of section 139 if the defect has been rectified before the assessment is made on existence of sufficient cause the Assessing Officer may condone the delay and treat the return as a valid return. Non-filing the report of the audit referred to in section 44AB is one of the defects which can be allowed to be rectified and the Assessing Officer may condon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 30, 1995, as per letter P 3. Thereafter, the auditors took the time in auditing and the report could be finalised as required under section 44AB of the Act, 1961 only in July, 1996, and thereafter it was filed before the Assessing Officer, the Deputy Commissioner of Income-tax, in November, 1996. Before the completion of audit and finalisation of the report as required under section 44AB of the Act the Assessing Officer passed the order P 7 on July 12, 1995, under section 139(9) refusing to extend the time. In more or less similar circumstances the High Court of Kerala in Kerala State Bamboo Corporation Ltd. v. CIT [1999] 236 ITR 288, held considering the facts situation for the assessment year 1994-95 that the return was filed on November 28, 1994. The defects were pointed out in the return. The other defects were removed on February 15,1999. However, it was pointed out that the audit under section 44AB of the Act, 1961, could be finalized only after the statutory audit mandated by section 619 of the Act of 1956 was done by the auditors to be appointed by the Central Government and the Central Government had not appointed auditors for the said purpose, the Kerala State Bamboo C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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