The officer refused you firm status because a document was missing that the Explanation to s.139(9) does not mention. Was he entitled to do that without giving you a chance to put it right?
No. The Tribunal held that the enumeration of defects in the Explanation below s.139(9) is not exhaustive but only illustrative, so a document the Explanation does not name can still be a defect; but precisely because it is a defect within s.139(9), the assessee must be given the opportunity to rectify it before the consequence is visited on him. The department could not deny firm status on a defect outside the Explanation without first offering that opportunity.
Decided by the ITAT (S.R. Chauhan, Judicial Member) on 2000-08-04, reported as (2000) 69 TTJ 129; ITA No. 65 (Jd) of 1997 and ITA No. 1607 (Jp) of 1994. It bears on section 139(9), section 139(9) Explanation, section 154, section 184, section 185 of the Income Tax Act 1961, in Assessment & Scrutiny, How Tax Law Is Read and Appeals matters.
It is the argument to run once you accept that the list is illustrative. If the department is going to call something a defect, it must take the consequence of that characterisation and give you the fifteen days. An officer who treats a missing document as fatal without a s.139(9) intimation has not followed the section he is relying on.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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The assessee was a registered firm. Its return was not accompanied by a copy of the partnership deed certified as a true copy under the signatures of all the partners. The Assessing Officer, on that footing, assessed the assessee in the status of an association of persons rather than as a registered firm. An application under s.154 to rectify that was rejected. Two connected appeals came before the Tribunal, the assessee's appeal in ITA No. 65 (Jd) of 1997 and the department's appeal in ITA No. 1607 (Jp) of 1994.
The department's appeal in ITA No. 1607/Jp/94 was dismissed and the assessee's appeal in ITA No. 65/Jd/97 was disposed of in the terms indicated in the order. The Tribunal held that non-furnishing of the certified copy of the partnership deed is not enumerated in any clause of the Explanation below s.139(9), but that the enumeration in the Explanation is not exhaustive and only illustrative (para 9), so the omission was a technical defect in respect of which the assessee was entitled to an opportunity to rectify before firm status was refused.
The Tribunal recorded that the missing document does not answer to any of the lettered clauses of the Explanation. It then adopted the reading of the Calcutta High Court in Rai Bahadur Bissesswarlal (para 8) that the enumeration is illustrative rather than closed. That reading does not licence the department to act on the omission without more: a defect within s.139(9) carries with it the machinery of s.139(9), which is intimation and an opportunity to rectify. The refusal of firm status without that opportunity could not stand.
the enumeration of various defects in Explanation below section 139(9) Income-tax Act which is not exhaustive but only illustrative
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Handle my notice → Ask a CA on WhatsAppNo. The Tribunal held that the enumeration of defects in the Explanation below s.139(9) is not exhaustive but only illustrative, so a document the Explanation does not name can still be a defect; but precisely because it is a defect within s.139(9), the assessee must be given the opportunity to rectify it before the consequence is visited on him. The department could not deny firm status on a defect outside the Explanation without first offering that opportunity. This was decided by the ITAT (S.R. Chauhan, Judicial Member) and bears on section 139(9), section 139(9) Explanation, section 154, section 184, section 185 of the Income Tax Act 1961. It is reported as (2000) 69 TTJ 129; ITA No. 65 (Jd) of 1997 and ITA No. 1607 (Jp) of 1994. It is the argument to run once you accept that the list is illustrative. If the department is going to call something a defect, it must take the consequence of that characterisation and give you the fifteen days. An officer who treats a missing document as fatal without a s.139(9) intimation has not followed the section he is relying on. If it applies to you, the first step is this: Where the officer has acted on a missing document, ask which provision he says it falls under; if it is a defect at all it is a s.139(9) defect.
The assessee was a registered firm. Its return was not accompanied by a copy of the partnership deed certified as a true copy under the signatures of all the partners. The Assessing Officer, on that footing, assessed the assessee in the status of an association of persons rather than as a registered firm. An application under s.154 to rectify that was rejected. Two connected appeals came before the Tribunal, the assessee's appeal in ITA No. 65 (Jd) of 1997 and the department's appeal in ITA No. 1607 (Jp) of 1994. The matter was decided on 2000-08-04 by the ITAT (S.R. Chauhan, Judicial Member). On those facts the ITAT held as follows. The department's appeal in ITA No. 1607/Jp/94 was dismissed and the assessee's appeal in ITA No. 65/Jd/97 was disposed of in the terms indicated in the order. The Tribunal held that non-furnishing of the certified copy of the partnership deed is not enumerated in any clause of the Explanation below s.139(9), but that the enumeration in the Explanation is not exhaustive and only illustrative (para 9), so the omission was a technical defect in respect of which the assessee was entitled to an opportunity to rectify before firm status was refused.
The Tribunal recorded that the missing document does not answer to any of the lettered clauses of the Explanation. It then adopted the reading of the Calcutta High Court in Rai Bahadur Bissesswarlal (para 8) that the enumeration is illustrative rather than closed. That reading does not licence the department to act on the omission without more: a defect within s.139(9) carries with it the machinery of s.139(9), which is intimation and an opportunity to rectify. The refusal of firm status without that opportunity could not stand. In the words reproduced by the source cited on this page: "the enumeration of various defects in Explanation below section 139(9) Income-tax Act which is not exhaustive but only illustrative"
It was decided by the ITAT on 2000-08-04 and is reported as (2000) 69 TTJ 129; ITA No. 65 (Jd) of 1997 and ITA No. 1607 (Jp) of 1994. 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 139(9) Explanation, section 154, section 184, section 185, 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 department's appeal in ITA No. 1607/Jp/94 was dismissed and the assessee's appeal in ITA No. 65/Jd/97 was disposed of in the terms indicated in the order. The Tribunal held that non-furnishing of the certified copy of the partnership deed is not enumerated in any clause of the Explanation below s.139(9), but that the enumeration in the Explanation is not exhaustive and only illustrative (para 9), so the omission was a technical defect in respect of which the assessee was entitled to an opportunity to rectify before firm status was refused. It arises in Assessment & Scrutiny, How Tax Law Is Read and Appeals matters, on section 139(9), section 139(9) Explanation, section 154, section 184, section 185 of the Income Tax Act 1961, and was decided by S.R. Chauhan, Judicial 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. If no intimation under s.139(9) was given, take that as the ground: the section requires the opportunity before the return or the status is written off. Do not argue that a document outside the lettered clauses cannot be a defect; on this authority and on the Calcutta line it can be. File the document with the appeal so that the point is not left as a bare procedural complaint.
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. It is itself an application of the Calcutta High Court's reading in CIT v. Rai Bahadur Bissesswarlal [1992] 195 ITR 825 (Cal). 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.
indiankanoon carries this order twice and labels one of the two copies as a decision of the Rajasthan High Court at Jaipur. It is not. The document itself is an order of the Jodhpur Bench of the Income-tax Appellate Tribunal signed by S.R. Chauhan, Judicial Member, and the only reference to a High Court in it is to the Calcutta High Court's decision in Rai Bahadur Bissesswarlal. Both copies were opened and carry the same text. The order deals with the pre-1993 registration regime for firms; the reasoning on s.139(9) is not tied to it. 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 department's appeal in ITA No. 1607/Jp/94 was dismissed and the assessee's appeal in ITA No. 65/Jd/97 was disposed of in the terms indicated in the order. The Tribunal held that non-furnishing of the certified copy of the partnership deed is not enumerated in any clause of the Explanation below s.139(9), but that the enumeration in the Explanation is not exhaustive and only illustrative (para 9), so the omission was a technical defect in respect of which the assessee was entitled to an opportunity to rectify before firm status was refused.
TaxSphere, “Shree Jagdamba Emery Stone v ITO”, https://taxnotice.vittsphere.com/caselaw/case/shree-jagdamba-emery-stone-v-ito-139-9-defect-outside-explanation/ (validity last checked 2026-09-17)
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