TMI Blog1993 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... loss account along with the return and the tax audit report. The Assessing Officer took the view that the return was defective, inasmuch as no compliance was made with the provisions contained in clauses (bb) and (d)(i) of the Explanation to sub-section (9) of section 139 of the Income-tax Act, 1961. The Assessing Officer was of the opinion that, since the petitioner had filed only a tentative profit and loss account and the audit report filed by the petitioner was also based on the same, it cannot be said that the petitioner has submitted the audit report as required by section 44AB in respect of the profit and loss account of the petitioner company. It appears that an opportunity was given by the Assessing Officer to the petitioner-compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invalid and non est, under section 139(9) of the said Act and the provisions of the Act are to be applied as if the assessee has failed to furnish a return ". Learned counsel for the petitioners in both the cases has urged that it is not required by sub-clause (i) of clause (d) of the Explanation to sub section (9) of section 139 of the said Act that the assessee shall file an audited profit and loss account. The contention is that the petitioners are Government companies, incorporated under the Companies Act and their accounts are to be audited by an auditor appointed by the Central Government under section 619 of the Companies Act. It is stated that no auditor had been appointed by the Central Government and the return for the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has left the matter after passing the impugned orders and, therefore, it is submitted that the Assessing Officer should be directed to complete the assessment proceedings. In this connection, it has also been pointed out that the Government auditor was subsequently appointed in both the cases and he has, after auditing the profit and loss account of the petitioners, submitted an audit report which is now available. Learned counsel for the respondents has contended that the Assessing Officer was perfectly justified in holding that the income-tax returns filed by the petitioners in both the cases were defective and all the documents required by law were not submitted by them along with the return and, therefore, the impugned orders are perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the income-tax returns were defective, the Assessing Officer should have proceeded to complete the assessment proceedings in accordance with law. He should have proceeded under sections 142 and 144 of the Act and should have made assessments accordingly. We do not agree with learned counsel for the respondent that it is a case of escaped assessment and the proceedings should have been completed in accordance with law under section 148 of the Act. However, whether assessment proceedings are to be completed under section 142 or section 144 or section 148, an opportunity of hearing will have to be given to the petitioners before making assessment and, in any case, the assessment cannot be completed without considering the cause shown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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