The return was signed by the company secretary instead of a director. Is it a nullity, or a defect you can cure?
A defect you can cure - decided on the preponderance of judicial opinion. The Tribunal recorded that the issue is one on which more than one view is possible but that the preponderance of judicial opinion is more in favour of the assessee, and directed that the assessee be treated as having filed a defective return on 31 December 1991 which was cured on 15 October 1992, so that the return stands as filed on the original date. A return signed by a person not authorised by s.140 is treated as a curable defect within s.139(9) read with s.292B rather than as a nullity.
Decided by the ITAT (S.C. Tiwari, Accountant Member) on 2004-03-10, reported as [2005] 95 ITD 249 (Mum); ITA Nos. 5351/Bom./95, 5639/Bom./95 and 4241/Mum./97, assessment year 1991-92. It bears on section 139(9), section 140, section 292B of the Income Tax Act 1961, in Assessment & Scrutiny, How Tax Law Is Read and Evidence & Burden of Proof matters.
Signature and verification failures are among the commonest defects notified, and the department's position is usually that the return is non est. This is the authority that the return survives and dates from its original filing once the signature is put right, which matters wherever a date-sensitive claim hangs on the original return.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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The assessee company's return for assessment year 1991-92, filed on 31 December 1991, was signed and verified by the company secretary rather than by a managing director or director as s.140(c) required. A return signed by the proper person was filed on 15 October 1992. The department's case was that the return, being invalid in terms of ss.139(9) and 140(c), could not be treated as valid by resort to s.292B. Three appeals were before the Tribunal, two for the assessment year and one connected.
The Tribunal reversed the Commissioner (Appeals) on this point and directed the Assessing Officer to treat the assessee as having filed a defective return of income on 31 December 1991 which was cured on 15 October 1992 (para 18). In the result the department's appeal in ITA 5639/Bom./95 was allowed, the assessee's appeal in ITA 5351/Bom./95 was partly allowed and the assessee's appeal in ITA No. 4241/Mum./97 was dismissed.
The Tribunal treated the signing of the return by a person other than the one named in s.140 as a formal defect of the kind that ss.139(9) and 292B are there to deal with, rather than as something that puts the return outside the Act altogether. Once the properly signed return was on file, the defect had been cured and the return stood as a return filed on the original date and cured on the later one. The Bench did not put the proposition higher than the material allowed: para 18 opens by finding that the issue is one on which more than one view is possible, and decides it on the footing that the preponderance of judicial opinion is more in favour of the assessee. It then followed the Kerala High Court's judgment in Masoneilan (India) Ltd. and the Tribunal's decisions in Vijay Trading Co., M.P. State Agro Industries Development Corpn. Ltd., Punjab United Pesticides & Chemicals Ltd. and B.F. Goodrich & Co. (para 18).
the assessing officer is directed to treat the assessee as having filed a defective return of income on 31-12-1991 which was cured on 15-10-1992
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Handle my notice → Ask a CA on WhatsAppA defect you can cure - decided on the preponderance of judicial opinion. The Tribunal recorded that the issue is one on which more than one view is possible but that the preponderance of judicial opinion is more in favour of the assessee, and directed that the assessee be treated as having filed a defective return on 31 December 1991 which was cured on 15 October 1992, so that the return stands as filed on the original date. A return signed by a person not authorised by s.140 is treated as a curable defect within s.139(9) read with s.292B rather than as a nullity. This was decided by the ITAT (S.C. Tiwari, Accountant Member) and bears on section 139(9), section 140, section 292B of the Income Tax Act 1961. It is reported as [2005] 95 ITD 249 (Mum); ITA Nos. 5351/Bom./95, 5639/Bom./95 and 4241/Mum./97, assessment year 1991-92. Signature and verification failures are among the commonest defects notified, and the department's position is usually that the return is non est. This is the authority that the return survives and dates from its original filing once the signature is put right, which matters wherever a date-sensitive claim hangs on the original return. If it applies to you, the first step is this: Establish who signed and whether that person answers to s.140 for the assessee's status.
The assessee company's return for assessment year 1991-92, filed on 31 December 1991, was signed and verified by the company secretary rather than by a managing director or director as s.140(c) required. A return signed by the proper person was filed on 15 October 1992. The department's case was that the return, being invalid in terms of ss.139(9) and 140(c), could not be treated as valid by resort to s.292B. Three appeals were before the Tribunal, two for the assessment year and one connected. The matter was decided on 2004-03-10 by the ITAT (S.C. Tiwari, Accountant Member). On those facts the ITAT held as follows. The Tribunal reversed the Commissioner (Appeals) on this point and directed the Assessing Officer to treat the assessee as having filed a defective return of income on 31 December 1991 which was cured on 15 October 1992 (para 18). In the result the department's appeal in ITA 5639/Bom./95 was allowed, the assessee's appeal in ITA 5351/Bom./95 was partly allowed and the assessee's appeal in ITA No. 4241/Mum./97 was dismissed.
The Tribunal treated the signing of the return by a person other than the one named in s.140 as a formal defect of the kind that ss.139(9) and 292B are there to deal with, rather than as something that puts the return outside the Act altogether. Once the properly signed return was on file, the defect had been cured and the return stood as a return filed on the original date and cured on the later one. The Bench did not put the proposition higher than the material allowed: para 18 opens by finding that the issue is one on which more than one view is possible, and decides it on the footing that the preponderance of judicial opinion is more in favour of the assessee. It then followed the Kerala High Court's judgment in Masoneilan (India) Ltd. and the Tribunal's decisions in Vijay Trading Co., M.P. State Agro Industries Development Corpn. Ltd., Punjab United Pesticides & Chemicals Ltd. and B.F. Goodrich & Co. (para 18). In the words reproduced by the source cited on this page: "the assessing officer is directed to treat the assessee as having filed a defective return of income on 31-12-1991 which was cured on 15-10-1992" The decision followed or applied Masoneilan (India) Ltd. (Ker) - respectfully followed (para 18); Vijay Trading Co. (Trib.) - followed (para 18); M.P. State Agro Industries Development Corpn. Ltd. (Trib.) - followed (para 18); Punjab United Pesticides & Chemicals Ltd. (Trib.) - followed (para 18); B.F. Goodrich & Co. (Trib.) - followed (para 18).
It was decided by the ITAT on 2004-03-10 and is reported as [2005] 95 ITD 249 (Mum); ITA Nos. 5351/Bom./95, 5639/Bom./95 and 4241/Mum./97, assessment year 1991-92. Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section 139(9), section 140, section 292B, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The Tribunal reversed the Commissioner (Appeals) on this point and directed the Assessing Officer to treat the assessee as having filed a defective return of income on 31 December 1991 which was cured on 15 October 1992 (para 18). In the result the department's appeal in ITA 5639/Bom./95 was allowed, the assessee's appeal in ITA 5351/Bom./95 was partly allowed and the assessee's appeal in ITA No. 4241/Mum./97 was dismissed. It arises in Assessment & Scrutiny, How Tax Law Is Read and Evidence & Burden of Proof matters, on section 139(9), section 140, section 292B of the Income Tax Act 1961, and was decided by S.C. Tiwari, Accountant Member. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Get a properly signed return or verification on file and record the date; that is the date of the cure. Argue the point as a defect cured under s.139(9) read with s.292B and ask for a direction that the return be treated as filed on the original date. Where a claim depends on the return being filed by the due date, run this together with the relation-back line in Tata Cummins and Aark Infosoft.
Searched for later treatment; none was found. That is not the same as a source affirming it. No later order applying, doubting or dissenting from this one was located on indiankanoon. Its relation-back proposition sits with JCIT v. Tata Cummins Ltd. [2002] 82 ITD 798 (Kol) and with the later Ahmedabad Bench decision in Aark Infosoft (ITA No. 681/Ahd/2023). No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
Only one Member, S.C. Tiwari, Accountant Member, could be established from the copy read; whether a Judicial Member sat with him is not clear from the document, so the bench line is stated as far as it could be verified. Three appeals were disposed of together and the outcome differs between them; the direction recorded here is the one on the s.139(9) point. The order reports the authorities by short name and '(supra)' only, so no citations for them are recorded. A check against the document corrected two things: the editor's note had said the order does not name the decisions relied on, when para 18 names them - one Kerala High Court judgment, Masoneilan (India) Ltd., and four Tribunal decisions, not two Kerala and one Madras High Court decisions as the reasoning had stated - and they are expressly followed, so they are now recorded; and the proposition has been brought back to the level at which the Bench decided it, para 18 opening with the finding that more than one view is possible and resting on the preponderance of judicial opinion. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The Tribunal reversed the Commissioner (Appeals) on this point and directed the Assessing Officer to treat the assessee as having filed a defective return of income on 31 December 1991 which was cured on 15 October 1992 (para 18). In the result the department's appeal in ITA 5639/Bom./95 was allowed, the assessee's appeal in ITA 5351/Bom./95 was partly allowed and the assessee's appeal in ITA No. 4241/Mum./97 was dismissed.
TaxSphere, “ACIT v Prime Securities Ltd”, https://taxnotice.vittsphere.com/caselaw/case/acit-v-prime-securities-139-9-signature-defect-cured/ (validity last checked 2026-09-17)
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