You missed the fifteen days on a s.139(9) notice and the officer has written back that your return is invalid. Is there anything left to do?
Yes. The proviso to s.139(9) lets the Assessing Officer condone the delay and treat the return as valid where the defect is cured after the fifteen days but before the assessment is made. The Kerala High Court held that the consequence of invalidity does not bite until the assessment is completed or the time for completing it runs out, so a cure filed before that date can still be accepted, and an application seeking reconsideration must be dealt with as a petition under the proviso even if it is not labelled one.
Decided by the High Court (G. Sivarajan J) on 1998-08-27, reported as [1999] 236 ITR 288 (Ker). The writ petition number is not printed on the copy read.. It bears on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 44AB, section 264, section 153 of the Income Tax Act 1961, in Assessment & Scrutiny, How Tax Law Is Read and Revision & Rectification matters.
This is the answer to the commonest disaster on the commonest notice. Officers routinely treat the fifteen-day expiry as final and write the return off. This decision says the power to condone survives right up to the assessment, and that the officer is bound to apply his mind to it rather than refuse on the footing that an invalid return cannot be revived.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The assessee, a public sector undertaking, filed its return for assessment year 1994-95 on 28 November 1994 declaring income of Rs. 58,000 after setting off brought-forward loss of Rs. 48,42,000. On 24 January 1995 the Assessing Officer intimated two defects: the return was not signed by the managing director, and it was not accompanied by the audit report under s.44AB. On 20 February 1995 the assessee filed a return signed by the managing director and sought time for the audit report, the statutory auditors not yet having been appointed by the Central Government. Auditors were appointed on 25 September 1995. The assessee applied for extension on 30 October 1995 and was granted time to 28 February 1996; it applied again on 24 February 1996 for time to 31 May 1996, on which no order was passed. The statutory audit reports came in on 9 and 10 April 1996 and the s.44AB report on 24 September 1996, whereupon the assessee filed a return with all documents on 25 September 1996. By exhibit P-11 dated 30 September 1996 the Assessing Officer rejected the return as filed beyond the time allowed. The assessee's petition of 11 October 1996 (exhibit P-12) asking for reconsideration and condonation was rejected by exhibit P-13 dated 1 November 1996, and its revision petition was rejected by the Commissioner by exhibit P-15 dated 18 March 1997 on the footing that s.139(9) overrides other provisions and that an invalid return cannot be resuscitated.
The writ petition was allowed. The Court quashed exhibits P-11 and P-13 and the Commissioner's order exhibit P-15, and directed the Assessing Officer to consider exhibit P-12 as a petition for condonation of delay under the proviso to s.139(9), after affording the assessee a hearing and permitting it to place further material in support of condonation and of its claim that the return be treated as valid (para 20). No assessment for 1994-95 had been made when the cured return was filed on 25 September 1996 and the time for making it did not expire until 31 March 1998, so the proviso was still available (paras 17 to 19).
The Court set out s.139(9) with its proviso and Explanation and rejected the Revenue's contention that once the fifteen days or the extended period expires the return is dead for all purposes. The consequence of invalidity crystallises only when the assessment is completed or the period for completing it expires; until then the officer retains the power under the proviso to condone the delay and treat the return as valid (para 17). On the facts the delay in obtaining the s.44AB report was traceable to the Central Government's delay in appointing the statutory auditors, which the respondents did not dispute and which was not shown to be other than bona fide (paras 11 to 15). The Court also recorded that the Commissioner had proceeded on a factual error in saying that no application for extension beyond 28 February 1996 had been made, the application of 24 February 1996 being admitted on the record (para 15). Since the assessee's petition of 11 October 1996 in substance asked for the return to be accepted despite the delay, the officer should have treated it as an invocation of the proviso and dealt with it on that footing (para 19).
if the assessee rectifies the defect beyond the time allowed by the Assessing Officer but before the assessment is made the Assessing Officer may condone the delay
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Handle my notice → Ask a CA on WhatsAppYes. The proviso to s.139(9) lets the Assessing Officer condone the delay and treat the return as valid where the defect is cured after the fifteen days but before the assessment is made. The Kerala High Court held that the consequence of invalidity does not bite until the assessment is completed or the time for completing it runs out, so a cure filed before that date can still be accepted, and an application seeking reconsideration must be dealt with as a petition under the proviso even if it is not labelled one. This was decided by the High Court (G. Sivarajan J) and bears on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 44AB, section 264, section 153 of the Income Tax Act 1961. It is reported as [1999] 236 ITR 288 (Ker). The writ petition number is not printed on the copy read.. This is the answer to the commonest disaster on the commonest notice. Officers routinely treat the fifteen-day expiry as final and write the return off. This decision says the power to condone survives right up to the assessment, and that the officer is bound to apply his mind to it rather than refuse on the footing that an invalid return cannot be revived. If it applies to you, the first step is this: Establish the date by which the assessment for that year must be completed under s.153; until that date passes the proviso is still available.
The assessee, a public sector undertaking, filed its return for assessment year 1994-95 on 28 November 1994 declaring income of Rs. 58,000 after setting off brought-forward loss of Rs. 48,42,000. On 24 January 1995 the Assessing Officer intimated two defects: the return was not signed by the managing director, and it was not accompanied by the audit report under s.44AB. On 20 February 1995 the assessee filed a return signed by the managing director and sought time for the audit report, the statutory auditors not yet having been appointed by the Central Government. Auditors were appointed on 25 September 1995. The assessee applied for extension on 30 October 1995 and was granted time to 28 February 1996; it applied again on 24 February 1996 for time to 31 May 1996, on which no order was passed. The statutory audit reports came in on 9 and 10 April 1996 and the s.44AB report on 24 September 1996, whereupon the assessee filed a return with all documents on 25 September 1996. By exhibit P-11 dated 30 September 1996 the Assessing Officer rejected the return as filed beyond the time allowed. The assessee's petition of 11 October 1996 (exhibit P-12) asking for reconsideration and condonation was rejected by exhibit P-13 dated 1 November 1996, and its revision petition was rejected by the Commissioner by exhibit P-15 dated 18 March 1997 on the footing that s.139(9) overrides other provisions and that an invalid return cannot be resuscitated. The matter was decided on 1998-08-27 by the High Court (G. Sivarajan J). On those facts the High Court held as follows. The writ petition was allowed. The Court quashed exhibits P-11 and P-13 and the Commissioner's order exhibit P-15, and directed the Assessing Officer to consider exhibit P-12 as a petition for condonation of delay under the proviso to s.139(9), after affording the assessee a hearing and permitting it to place further material in support of condonation and of its claim that the return be treated as valid (para 20). No assessment for 1994-95 had been made when the cured return was filed on 25 September 1996 and the time for making it did not expire until 31 March 1998, so the proviso was still available (paras 17 to 19).
The Court set out s.139(9) with its proviso and Explanation and rejected the Revenue's contention that once the fifteen days or the extended period expires the return is dead for all purposes. The consequence of invalidity crystallises only when the assessment is completed or the period for completing it expires; until then the officer retains the power under the proviso to condone the delay and treat the return as valid (para 17). On the facts the delay in obtaining the s.44AB report was traceable to the Central Government's delay in appointing the statutory auditors, which the respondents did not dispute and which was not shown to be other than bona fide (paras 11 to 15). The Court also recorded that the Commissioner had proceeded on a factual error in saying that no application for extension beyond 28 February 1996 had been made, the application of 24 February 1996 being admitted on the record (para 15). Since the assessee's petition of 11 October 1996 in substance asked for the return to be accepted despite the delay, the officer should have treated it as an invocation of the proviso and dealt with it on that footing (para 19). In the words reproduced by the source cited on this page: "if the assessee rectifies the defect beyond the time allowed by the Assessing Officer but before the assessment is made the Assessing Officer may condone the delay"
It was decided by the High Court on 1998-08-27 and is reported as [1999] 236 ITR 288 (Ker). The writ petition 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) proviso, section 139(9) Explanation, section 44AB, section 264, section 153, 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 writ petition was allowed. The Court quashed exhibits P-11 and P-13 and the Commissioner's order exhibit P-15, and directed the Assessing Officer to consider exhibit P-12 as a petition for condonation of delay under the proviso to s.139(9), after affording the assessee a hearing and permitting it to place further material in support of condonation and of its claim that the return be treated as valid (para 20). No assessment for 1994-95 had been made when the cured return was filed on 25 September 1996 and the time for making it did not expire until 31 March 1998, so the proviso was still available (paras 17 to 19). It arises in Assessment & Scrutiny, How Tax Law Is Read and Revision & Rectification matters, on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 44AB, section 264, section 153 of the Income Tax Act 1961, and was decided by G. Sivarajan 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. File the cured return or the missing annexure and, with it, a written application asking the Assessing Officer to exercise the power under the proviso to s.139(9), setting out why the delay occurred. If the officer has already written the return off, ask him to treat your representation as a condonation petition under the proviso and to pass a speaking order on it; the label on your letter does not govern. Keep the material showing the delay was outside your control (here, the Central Government's delay in appointing the statutory auditors) on the file, because good faith is what the officer is weighing. If the officer refuses, the refusal is an order capable of being taken up, and the High Court will interfere where he has not considered the proviso at all.
Searched for later treatment; none was found. That is not the same as a source affirming it. Searches on indiankanoon for later decisions applying or doubting this judgment on the proviso to s.139(9) did not turn one up. The same construction of the proviso is taken by the Tribunal in Francisco X. Pacheco v DCIT (Panaji, 30 August 2022) and by the CBDT in its letter of 12 December 2017, but neither cites this judgment. Nothing 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 writ petition number is not printed on the copy read; only the reporter citation [1999] 236 ITR 288 (Ker) appears. The judgment reproduces the Explanation as it then stood, in which the audit report clause was lettered (bb); the lettering has since changed and the current clauses run (a) to (f). The point decided does not depend on the lettering. The date given is the date of pronouncement printed on the document. 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 writ petition was allowed. The Court quashed exhibits P-11 and P-13 and the Commissioner's order exhibit P-15, and directed the Assessing Officer to consider exhibit P-12 as a petition for condonation of delay under the proviso to s.139(9), after affording the assessee a hearing and permitting it to place further material in support of condonation and of its claim that the return be treated as valid (para 20). No assessment for 1994-95 had been made when the cured return was filed on 25 September 1996 and the time for making it did not expire until 31 March 1998, so the proviso was still available (paras 17 to 19).
TaxSphere, “Kerala State Bamboo Corporation Ltd v CIT”, https://taxnotice.vittsphere.com/caselaw/case/kerala-state-bamboo-v-cit-139-9-proviso-condonation/ (validity last checked 2026-09-17)
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