The accountant's certificate for the s.80HHC claim was prepared but never attached to the return. Is the deduction gone?
No. The Calcutta High Court, following its earlier decision in Rai Bahadur Bissesswarlal Motilal, held that the defects listed in the Explanation to s.139(9) are illustrative and not exhaustive, and that the Assessing Officer retains the power to have a defect made good before the assessment is completed. The Court set aside the orders below and directed the deduction to be allowed provided the certificate was filed within two months.
Decided by the High Court (Tarun Chatterjee J) on 1995-08-30, reported as [1999] 238 ITR 257 (Cal); (1996) 2 CALLT 141 (HC). It bears on section 139(9), section 139(9) Explanation, section 80HHC, section 80HHC(4) of the Income Tax Act 1961, in Assessment & Scrutiny, Deductions & Disallowances and How Tax Law Is Read matters.
It is the practical case on an annexure that the Explanation does not name. The certificate under s.80HHC(4) is not one of the lettered clauses, yet the Court dealt with the omission as a s.139(9) defect and allowed it to be cured, which is the route to take where a claim has been refused for want of a form that was in existence but not attached.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The petitioners claimed a deduction under s.80HHC for assessment year 1991-92. Section 80HHC(4) required the return to be accompanied by the report of an accountant in Form No. 10CCAC. The certificate had been prepared but was inadvertently not filed with the return. The authorities refused the deduction for want of the certificate. The petitioners moved the High Court.
The writ petition was allowed. The orders of the authorities below were set aside and the Assessing Officer was directed to grant the deduction under s.80HHC provided the special audit certificate was filed within two months (paras 7 to 11).
The Court set out the scheme of s.139(9) and its Explanation, noting that the Explanation lists conditions relating to annexures, audit reports and financial statements but does not name the certificate required by s.80HHC(4). Applying CIT v. Rai Bahadur Bissesswarlal [1992] 195 ITR 825 (Cal), it held that the defects listed are illustrative and not exhaustive, so the omission of the certificate was a defect the officer could and should have required to be made good, and the officer retained the discretion to direct rectification before the assessment was completed.
illustrative and not exhaustive
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Handle my notice → Ask a CA on WhatsAppNo. The Calcutta High Court, following its earlier decision in Rai Bahadur Bissesswarlal Motilal, held that the defects listed in the Explanation to s.139(9) are illustrative and not exhaustive, and that the Assessing Officer retains the power to have a defect made good before the assessment is completed. The Court set aside the orders below and directed the deduction to be allowed provided the certificate was filed within two months. This was decided by the High Court (Tarun Chatterjee J) and bears on section 139(9), section 139(9) Explanation, section 80HHC, section 80HHC(4) of the Income Tax Act 1961. It is reported as [1999] 238 ITR 257 (Cal); (1996) 2 CALLT 141 (HC). It is the practical case on an annexure that the Explanation does not name. The certificate under s.80HHC(4) is not one of the lettered clauses, yet the Court dealt with the omission as a s.139(9) defect and allowed it to be cured, which is the route to take where a claim has been refused for want of a form that was in existence but not attached. If it applies to you, the first step is this: Establish that the certificate or report existed and was signed before the return was filed; the omission is then an annexure failure and not a failure of substance.
The petitioners claimed a deduction under s.80HHC for assessment year 1991-92. Section 80HHC(4) required the return to be accompanied by the report of an accountant in Form No. 10CCAC. The certificate had been prepared but was inadvertently not filed with the return. The authorities refused the deduction for want of the certificate. The petitioners moved the High Court. The matter was decided on 1995-08-30 by the High Court (Tarun Chatterjee J). On those facts the High Court held as follows. The writ petition was allowed. The orders of the authorities below were set aside and the Assessing Officer was directed to grant the deduction under s.80HHC provided the special audit certificate was filed within two months (paras 7 to 11).
The Court set out the scheme of s.139(9) and its Explanation, noting that the Explanation lists conditions relating to annexures, audit reports and financial statements but does not name the certificate required by s.80HHC(4). Applying CIT v. Rai Bahadur Bissesswarlal [1992] 195 ITR 825 (Cal), it held that the defects listed are illustrative and not exhaustive, so the omission of the certificate was a defect the officer could and should have required to be made good, and the officer retained the discretion to direct rectification before the assessment was completed. In the words reproduced by the source cited on this page: "illustrative and not exhaustive"
It was decided by the High Court on 1995-08-30 and is reported as [1999] 238 ITR 257 (Cal); (1996) 2 CALLT 141 (HC). 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 80HHC, section 80HHC(4), 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 orders of the authorities below were set aside and the Assessing Officer was directed to grant the deduction under s.80HHC provided the special audit certificate was filed within two months (paras 7 to 11). It arises in Assessment & Scrutiny, Deductions & Disallowances and How Tax Law Is Read matters, on section 139(9), section 139(9) Explanation, section 80HHC, section 80HHC(4) of the Income Tax Act 1961, and was decided by Tarun Chatterjee 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 document at once and ask the officer to take it on record under s.139(9) before the assessment is completed. Where the claim has already been refused, seek a direction that the deduction be allowed on the document being filed within a fixed time, which is the relief granted here. Cite this together with Rai Bahadur Bissesswarlal Motilal; the two run together on the illustrative reading of the Explanation.
Searched for later treatment; none was found. That is not the same as a source affirming it. No decision applying, doubting or overruling this judgment was located. It is itself an application of CIT v. Rai Bahadur Bissesswarlal [1992] 195 ITR 825 (Cal), which the Jodhpur Bench of the Tribunal later relied on in Shree Jagdamba Emery Stone v. ITO (2000) 69 TTJ 129. 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 key_quote is short because the only words on the illustrative reading that came back whole from the copy read were the phrase adopted from the earlier decision; the paragraph number for that passage is not established. The case number is not printed on the copy read; the two reporter citations are. There is a long gap between the 1996 CALLT citation and the 1999 ITR citation, which is a reporting delay and not a second decision. 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 orders of the authorities below were set aside and the Assessing Officer was directed to grant the deduction under s.80HHC provided the special audit certificate was filed within two months (paras 7 to 11).
TaxSphere, “Murali Export House v CIT”, https://taxnotice.vittsphere.com/caselaw/case/murali-export-house-v-cit-139-9-80hhc-certificate-curable/ (validity last checked 2026-09-17)
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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?
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?
The officer declared your return invalid for want of an audit report when your turnover was below the audit threshold. What is the remedy?
You never asked the Assessing Officer for more time, the return went invalid for want of proof of tax, and you have gone to the Commissioner under s.264. Will that work?
