TaxTMI 
TaxTMI 
2003 (3) TMI 8
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...., however, it may be clarified that the petitioner is entitled to raise all contentions before the appellate authority. In the present case, the Tribunal has held that even though the return is held to be invalid, the assessee is not debarred from furnishing any evidence in support of any claim though not made in the original return. The said finding of the Tribunal has not been disputed by either side. Therefore, for the assessment year 1991-92, the assessee is permitted to pursue the appellate remedy and it is clarified that as held by the Tribunal, the assessee would be entitled to furnish any evidence in support of any claim though not made by it in the original return. Thus, the controversy in the present petition is restricted only to the action taken under section 139(9) of the Income-tax Act for the assessment year 1992-93. The facts, relevant for the assessment year 1992-93, are as follows: The accounts of the petitioner for the year ended on March 31, 1992 (assessment year 1992-93), were duly audited under the Companies Act, 1956, and a report of the statutory auditor was obtained on June 2,1992. The said accounts were adopted by the shareholders at an annual general me....
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...., (b) that as per the views expressed by the Department of Company Affairs the petitioner could not reopen and revise its accounts after the same were adopted at an annual general meeting except for complying with the technical requirements of taxation laws, and (c) that the discrepancy pointed out by M/s. S.R. Batliboi and Co. has been taken note of and suitable rectification entries have been made in the accounts for the year ending March 31, 1993, which action was in accordance with the accepted accounting practice. Accordingly, it was submitted that the return filed by the petitioner be treated as valid. By an intimation dated March 30, 1993, the Assessing Officer treated the return filed for the assessment year 1992-93 as invalid under section 139(9) of the Income-tax Act. According to the Assessing Officer under clause (e) of the Explanation to section 139(9), the return was to be accompanied by an audited profit and loss account and the balance-sheet and, therefore, the said accounts should form the basis of the computation of income under the Income-tax Act. According to the Assessing Officer, there being material differences between the income disclosed in the audited pr....
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....ounsel for the petitioner opted to withdraw the reference application and pursue the remedy of writ. In these circumstances, we are of the opinion that it is just and proper and in the interest of justice and in the peculiar facts of the present case, to hear and dispose of the writ petition on the merits. Mr. Pardiwala, learned counsel appearing on behalf of the petitioner, submitted that in the present case, the Assessing Officer has held that there was a defect in the return in terms of clause (e) of the Explanation to section 139(9) of the Income-tax Act and because the petitioner has failed to cure the said defect, the return filed by the petitioner was liable to be declared as invalid. He submitted that clause (e) of the Explanation to section 139(9) of the Income-tax Act provides that where the accounts of an assessee have been audited, the return of income must be filed with the copies of the audited profit and loss account, the balance sheet and the auditors report. It was submitted that in the present case the accounts for the year ended March 31, 1992, were audited and the same were adopted at the annual general meeting held on July 21, 1992. It was submitted that thes....
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....ssessing Officer would be perfectly justified in ignoring the same as being invalid. Accordingly, it was submitted that the orders passed by the authorities below suffer from patent error of law and the same are liable to be quashed and set aside. Mr. Desai, learned senior advocate appearing on behalf of the respondents, on the other hand, supported the orders passed by the authorities below. He submitted that in the present case admittedly the defects pointed out by the Assessing Officer were not cured and, therefore, the Assessing Officer was justified in treating the return as invalid. He submitted that section 139(9) does not contemplate passing of an order. It merely authorises the Assessing b Officer to intimate the assessee about the defects in the return. If the defects are not removed then section 139(9) itself treats the return as invalid. It was submitted that merely because the Assessing Officer has intimated the above facts to the petitioner, it could not be said that there was an order passed under section 139(9) of the Income-tax Act. Relying upon the decision of the c Gujarat High Court in the case of Gopal Glass Works Pvt. Ltd. v. CIT [2001] 252 ITR 354, it was su....
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....fit and loss account and balance-sheet and the auditor's report. Where the audit is not completed, Instruction No. 1348, dated August 30, 1980, makes it clear that such a return should not be treated as a defective return. In the present case, the return filed by the petitioner contained all the documents set out in clause (e). Since, all the documents set out in clause (e) were already annexed to the return, it could not be said that the return suffered from the defects set out in clause (e). If the computation of income does not tally with the profit as per the audited profit and loss account, the return cannot be treated as defective under section 139(9). There can be several instances where the computation of income under the Act may not be in consonance with the profit disclosed in the accounts. For example, in the accounts certain expenditure of a revenue nature may be amortised over a certain period on an application of the "deferred revenue expenditure" principle of account. However, for tax purposes, as the entire liability has accrued during the year, the expenditure could be claimed in its entirety irrespective of the method adopted in the accounts. Similarly, there may ....