Is the list of defects in the Explanation to s.139(9) a closed list, so that the officer cannot call anything else a defect?
No. The Calcutta High Court held that the defects specified in s.139(9) are illustrative and not exhaustive. The corollary is the one that helps the taxpayer: because the provision is a curative one, an omission such as the audit report of a trust not being filed with the return can be made good during the assessment proceedings, and the officer cannot then ignore the report or the return.
Decided by the High Court (Ajit K. Sengupta J and Shyamal Kumar Sen J) on 1991-04-22, reported as [1992] 195 ITR 825 (Cal). Reference under s.256 of the Income-tax Act, 1961; the reference number is not printed on the copy read.. It bears on section 139(9), section 139(9) Explanation, section 12A, section 11, section 139(5), section 292B of the Income Tax Act 1961, in Assessment & Scrutiny, How Tax Law Is Read, Charitable Trusts & Exemption and Capital Gains Exemptions matters.
This is the authority that answers the question a practitioner asks first, and it answers it against the taxpayer on the narrow point. There is no reported decision holding that the department may not treat as a defect something outside the lettered clauses. What the case gives instead is the wider proposition that matters more in practice: a defect cured before the assessment is completed must be acted on.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The assessee was a charitable trust claiming exemption under s.11 for assessment year 1984-85. Section 12A(b) required the return to be accompanied by the audit report in Form No. 10B. The report was not filed with the return; it was filed later, on 6 March 1987, before the assessment was completed. The lower authorities denied the exemption on the footing that the report had not accompanied the return. The Tribunal held against the department and the matter came to the High Court on a reference under s.256, the question being whether, having regard to ss.12A, 139(5), 139(9) and 292B and the scheme of the Act as a whole, the Tribunal was right in holding that the lower authorities were not correct in denying the exemption under s.11 for assessment year 1984-85.
The question was answered in the affirmative and in favour of the assessee, with no order as to costs (paras 19 and 20). The defects specified in s.139(9) are only illustrative and not exhaustive (para 14). Where the assessee has cured the defect in the return by filing the audit report in the course of the assessment proceedings, the Income-tax Officer cannot ignore the audit report or the return in completing the assessment (para 16).
The Court read s.139(9) as a curative provision. Reading the specified defects as a closed list would put an unnecessary restriction on the officer, who cannot ignore the specified defects and must get them rectified, but is not confined to them; the Court drew support for that reading from the amendment made by the Finance Act, 1988 (para 14). Having so read the provision, the Court held that the officer's duty on a cured return runs the other way as well: once compliance has been made in the course of the assessment proceedings by filing the audit report, the report and the return must be taken into account in completing the assessment (para 16).
In our opinion, the defects specified in Section 139(9) are only illustrative and not exhaustive.
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Handle my notice → Ask a CA on WhatsAppNo. The Calcutta High Court held that the defects specified in s.139(9) are illustrative and not exhaustive. The corollary is the one that helps the taxpayer: because the provision is a curative one, an omission such as the audit report of a trust not being filed with the return can be made good during the assessment proceedings, and the officer cannot then ignore the report or the return. This was decided by the High Court (Ajit K. Sengupta J and Shyamal Kumar Sen J) and bears on section 139(9), section 139(9) Explanation, section 12A, section 11, section 139(5), section 292B of the Income Tax Act 1961. It is reported as [1992] 195 ITR 825 (Cal). Reference under s.256 of the Income-tax Act, 1961; the reference number is not printed on the copy read.. This is the authority that answers the question a practitioner asks first, and it answers it against the taxpayer on the narrow point. There is no reported decision holding that the department may not treat as a defect something outside the lettered clauses. What the case gives instead is the wider proposition that matters more in practice: a defect cured before the assessment is completed must be acted on. If it applies to you, the first step is this: Do not build a case on the argument that the defect notified is outside the Explanation; on this authority the list is illustrative.
The assessee was a charitable trust claiming exemption under s.11 for assessment year 1984-85. Section 12A(b) required the return to be accompanied by the audit report in Form No. 10B. The report was not filed with the return; it was filed later, on 6 March 1987, before the assessment was completed. The lower authorities denied the exemption on the footing that the report had not accompanied the return. The Tribunal held against the department and the matter came to the High Court on a reference under s.256, the question being whether, having regard to ss.12A, 139(5), 139(9) and 292B and the scheme of the Act as a whole, the Tribunal was right in holding that the lower authorities were not correct in denying the exemption under s.11 for assessment year 1984-85. The matter was decided on 1991-04-22 by the High Court (Ajit K. Sengupta J and Shyamal Kumar Sen J). On those facts the High Court held as follows. The question was answered in the affirmative and in favour of the assessee, with no order as to costs (paras 19 and 20). The defects specified in s.139(9) are only illustrative and not exhaustive (para 14). Where the assessee has cured the defect in the return by filing the audit report in the course of the assessment proceedings, the Income-tax Officer cannot ignore the audit report or the return in completing the assessment (para 16).
The Court read s.139(9) as a curative provision. Reading the specified defects as a closed list would put an unnecessary restriction on the officer, who cannot ignore the specified defects and must get them rectified, but is not confined to them; the Court drew support for that reading from the amendment made by the Finance Act, 1988 (para 14). Having so read the provision, the Court held that the officer's duty on a cured return runs the other way as well: once compliance has been made in the course of the assessment proceedings by filing the audit report, the report and the return must be taken into account in completing the assessment (para 16). In the words reproduced by the source cited on this page: "In our opinion, the defects specified in Section 139(9) are only illustrative and not exhaustive."
It was decided by the High Court on 1991-04-22 and is reported as [1992] 195 ITR 825 (Cal). Reference under s.256 of the Income-tax Act, 1961; the reference number is not printed on the copy read.. Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section 139(9), section 139(9) Explanation, section 12A, section 11, section 139(5), 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 question was answered in the affirmative and in favour of the assessee, with no order as to costs (paras 19 and 20). The defects specified in s.139(9) are only illustrative and not exhaustive (para 14). Where the assessee has cured the defect in the return by filing the audit report in the course of the assessment proceedings, the Income-tax Officer cannot ignore the audit report or the return in completing the assessment (para 16). It arises in Assessment & Scrutiny, How Tax Law Is Read, Charitable Trusts & Exemption and Capital Gains Exemptions matters, on section 139(9), section 139(9) Explanation, section 12A, section 11, section 139(5), section 292B of the Income Tax Act 1961, and was decided by Ajit K. Sengupta J and Shyamal Kumar Sen J. 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. Argue instead that the defect was cured before the assessment was completed, and that the officer was bound to take the cured return and the annexure into account. Where the annexure is an audit report required by the exemption provision itself, file it in the course of the assessment proceedings and put the date of filing on record. If the officer refuses to take a document filed during the assessment into account, that refusal, rather than the characterisation of the defect, is the ground to take.
Still good law. Followed by the same High Court in Murali Export House v. CIT [1999] 238 ITR 257 (Cal), decided 30 August 1995, which adopted the proposition that the defects listed are illustrative and not exhaustive, and relied on by the Jodhpur Bench of the Tribunal in Shree Jagdamba Emery Stone v. ITO (2000) 69 TTJ 129, decided 4 August 2000. No decision overruling or doubting it was located. 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.
The judgment construes the Explanation in the form it took before and immediately after the Finance Act, 1988; the clause lettering has since changed and the present clauses run (a) to (f) with a separate limb for cases where accounts are not maintained. The reasoning on whether the list is closed does not turn on the lettering. Note that the proposition cuts both ways: it is the department, not the assessee, that gains from the officer being able to notify a defect outside the lettered clauses, and no decision going the other way was found. The reference number is not printed on the copy read. 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 question was answered in the affirmative and in favour of the assessee, with no order as to costs (paras 19 and 20). The defects specified in s.139(9) are only illustrative and not exhaustive (para 14). Where the assessee has cured the defect in the return by filing the audit report in the course of the assessment proceedings, the Income-tax Officer cannot ignore the audit report or the return in completing the assessment (para 16).
TaxSphere, “CIT v Rai Bahadur Bissesswarlal Motilal”, https://taxnotice.vittsphere.com/caselaw/case/cit-v-rai-bahadur-bissesswarlal-motilal-139-9-explanation-illustrative/ (validity last checked 2026-09-17)
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