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?
No. The Delhi High Court held that the power to extend time and to condone the delay in rectifying a defect under s.139(9) is conferred on the Assessing Officer, and the Commissioner in revision under s.264 is not the forum in which to ask for it for the first time. Where the assessee had not applied to the Assessing Officer at all, no fault could be found with the officer's order or with the Commissioner's refusal.
Decided by the High Court (R.C. Lahoti J) on 1998-10-27, reported as [1999] 239 ITR 440 (Delhi); 76 (1998) DLT 283. It bears on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 140A, section 264 of the Income Tax Act 1961, in Assessment & Scrutiny, Revision & Rectification and How Tax Law Is Read matters.
It marks the limit of the taxpayer-friendly line on the proviso. The proviso is a power of the Assessing Officer, and it must be invoked before him. A practitioner who lets the assessment go by and then tries to open the point in revision is likely to lose, and this is the decision the department will cite.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The petitioner filed his return for assessment year 1995-96 on 31 October 1995 declaring income of Rs. 38,06,338 on which tax of Rs. 10,93,330 and interest of Rs. 1,99,346 were payable, a total of Rs. 12,90,676. The return was not accompanied by proof of payment of the self-assessment tax under s.140A nor by proof of tax deducted at source. The Assessing Officer intimated the defects and, the defects not having been rectified, by order dated 13 March 1996 treated the return as invalid. The petitioner paid tax in instalments on 23 March 1996, 8 August 1996 and 6 December 1996, that is, after the return had been declared invalid, and applied to the Commissioner under s.264. The Commissioner rejected the revision by order dated 31 January 1997. The petitioner did not at any stage apply to the Assessing Officer for extension of time under s.139(9).
The writ petition was dismissed and the orders of the Assessing Officer dated 13 March 1996 and of the Commissioner dated 31 January 1997 were maintained, with no order as to costs. Because the petitioner had failed to seek extension of time from the Assessing Officer as s.139(9) contemplates, no fault could be found with the impugned orders.
The Court set out s.139(9) with its proviso and the clause of the Explanation requiring the return to be accompanied by proof of tax paid by way of deduction at source, advance tax and self-assessment tax. It recorded that s.264 confers a wide jurisdiction on the Commissioner, who may on the assessee's application call for the record of any proceeding and pass such order thereon, not being prejudicial to the assessee, as he thinks fit. But the jurisdiction to grant an extension of time and to condone the delay in rectifying the defect is expressly conferred by s.139(9) on the Assessing Officer, and the assessee had never invoked it before him. In those circumstances neither the officer's order treating the return as invalid nor the Commissioner's refusal could be faulted.
The jurisdiction to grant an extension of time and condone the delay in rectifying the defect is expressly conferred on the Assessing Officer
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Handle my notice → Ask a CA on WhatsAppNo. The Delhi High Court held that the power to extend time and to condone the delay in rectifying a defect under s.139(9) is conferred on the Assessing Officer, and the Commissioner in revision under s.264 is not the forum in which to ask for it for the first time. Where the assessee had not applied to the Assessing Officer at all, no fault could be found with the officer's order or with the Commissioner's refusal. This was decided by the High Court (R.C. Lahoti J) and bears on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 140A, section 264 of the Income Tax Act 1961. It is reported as [1999] 239 ITR 440 (Delhi); 76 (1998) DLT 283. It marks the limit of the taxpayer-friendly line on the proviso. The proviso is a power of the Assessing Officer, and it must be invoked before him. A practitioner who lets the assessment go by and then tries to open the point in revision is likely to lose, and this is the decision the department will cite. If it applies to you, the first step is this: On receipt of a s.139(9) notice, apply to the Assessing Officer in writing for further time within the fifteen days, even if you cannot cure the defect yet; the application is what preserves the position.
The petitioner filed his return for assessment year 1995-96 on 31 October 1995 declaring income of Rs. 38,06,338 on which tax of Rs. 10,93,330 and interest of Rs. 1,99,346 were payable, a total of Rs. 12,90,676. The return was not accompanied by proof of payment of the self-assessment tax under s.140A nor by proof of tax deducted at source. The Assessing Officer intimated the defects and, the defects not having been rectified, by order dated 13 March 1996 treated the return as invalid. The petitioner paid tax in instalments on 23 March 1996, 8 August 1996 and 6 December 1996, that is, after the return had been declared invalid, and applied to the Commissioner under s.264. The Commissioner rejected the revision by order dated 31 January 1997. The petitioner did not at any stage apply to the Assessing Officer for extension of time under s.139(9). The matter was decided on 1998-10-27 by the High Court (R.C. Lahoti J). On those facts the High Court held as follows. The writ petition was dismissed and the orders of the Assessing Officer dated 13 March 1996 and of the Commissioner dated 31 January 1997 were maintained, with no order as to costs. Because the petitioner had failed to seek extension of time from the Assessing Officer as s.139(9) contemplates, no fault could be found with the impugned orders.
The Court set out s.139(9) with its proviso and the clause of the Explanation requiring the return to be accompanied by proof of tax paid by way of deduction at source, advance tax and self-assessment tax. It recorded that s.264 confers a wide jurisdiction on the Commissioner, who may on the assessee's application call for the record of any proceeding and pass such order thereon, not being prejudicial to the assessee, as he thinks fit. But the jurisdiction to grant an extension of time and to condone the delay in rectifying the defect is expressly conferred by s.139(9) on the Assessing Officer, and the assessee had never invoked it before him. In those circumstances neither the officer's order treating the return as invalid nor the Commissioner's refusal could be faulted. In the words reproduced by the source cited on this page: "The jurisdiction to grant an extension of time and condone the delay in rectifying the defect is expressly conferred on the Assessing Officer"
It was decided by the High Court on 1998-10-27 and is reported as [1999] 239 ITR 440 (Delhi); 76 (1998) DLT 283. 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 140A, section 264, 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 department, and it appears in this library for that reason — you need to know what the Assessing Officer will cite against you. The writ petition was dismissed and the orders of the Assessing Officer dated 13 March 1996 and of the Commissioner dated 31 January 1997 were maintained, with no order as to costs. Because the petitioner had failed to seek extension of time from the Assessing Officer as s.139(9) contemplates, no fault could be found with the impugned orders. It arises in Assessment & Scrutiny, Revision & Rectification and How Tax Law Is Read matters, on section 139(9), section 139(9) proviso, section 139(9) Explanation, section 140A, section 264 of the Income Tax Act 1961, and was decided by R.C. Lahoti 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. If the fifteen days have gone, still apply to the Assessing Officer under the proviso before the assessment is made, and do it in writing. Do not treat s.264 as a substitute for that application; on this authority the Commissioner will not exercise a power that the statute gives to the officer. Where the defect is non-payment of self-assessment tax under s.140A, pay and file the proof at once; payment after the return has been declared invalid did not save the assessee here.
Searched for later treatment; none was found. That is not the same as a source affirming it. No later decision applying, distinguishing or doubting this judgment was located on indiankanoon. Read with Kerala State Bamboo Corporation Ltd. v. CIT [1999] 236 ITR 288 (Ker), decided two months earlier, the two are consistent: the Kerala case concerned an assessee who had applied to the Assessing Officer, this one an assessee who had not. 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.
A request for the full paragraph-by-paragraph text of this judgment was refused by the fetch layer, so the two sentences recorded here as the Court's own words were obtained by a separate targeted fetch of the print view and the paragraph numbers are not established. The date is the date of pronouncement on the document. The clause of the Explanation quoted in the judgment is lettered (c)(i) in the report; the lettering has since changed. 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 dismissed and the orders of the Assessing Officer dated 13 March 1996 and of the Commissioner dated 31 January 1997 were maintained, with no order as to costs. Because the petitioner had failed to seek extension of time from the Assessing Officer as s.139(9) contemplates, no fault could be found with the impugned orders.
TaxSphere, “Sudhir Sareen v CIT”, https://taxnotice.vittsphere.com/caselaw/case/sudhir-sareen-v-cit-139-9-proof-of-tax-264/ (validity last checked 2026-09-17)
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Neither your original nor your revised return carried the self-assessment tax. The officer ignored that and assessed you on the original return. Is the assessment good?
The officer declared your return invalid for non-payment of self-assessment tax and then assessed you under s.143(3) starting from the figures in that very return. Can he do both?
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 treated some of your s.153A returns as defective for non-payment of self-assessment tax and others as valid, on the same facts. Can the Tribunal put that right?
