Section 139(9) proviso

Section 139(9) proviso — the law in short

What the courts have decided on section 139(9) proviso, in one screen. Read this first; open an entry when you need the facts, the reasoning and the source.

• Sudhir Sareen v CIT High CourtHelps departmentNo later treatment found
  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.
• Kerala State Bamboo Corporation Ltd v CIT High CourtHelps taxpayerNo later treatment found
  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.
• PME Power Solutions India Ltd v DCIT ITATHelps taxpayerNo later treatment found
  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?
  No. The Tribunal held that once a return is treated as defective and invalid under s.139(9), the only recourse legally available to the Assessing Officer is to frame the assessment under s.144. An assessment under s.143(3) built on the income returned in a return the officer has himself declared invalid cannot stand, and the Tribunal quashed it.
• Aark Infosoft Pvt Ltd v ACIT ITATHelps taxpayerNo later treatment found
  You cured a s.139(9) defect months after filing. Does the six-month clock for the s.143(2) notice run from the original return or from the corrected one?
  From the original return - on the authority of the jurisdictional High Court, which the Tribunal reproduced and adopted. The Gujarat High Court in Kunal Structure (India) (P.) Ltd. v DCIT held that there is no concept of a corrected return under the Act, that s.139(9) calls for removal of the defects in the return already filed and not for a fresh return, and that the removal of the defects relates back to the filing of the original return, so that it is the original filing date that governs the limitation under s.143(2). The Tribunal set that judgment out at para 16 and then held, in its own words at para 17, that the s.143(2) notice having been issued beyond the limit prescribed under the Act, the assessment framed was without jurisdiction and was directed to be quashed.
• Francisco X. Pacheco v DCIT ITATHelps taxpayerNo later treatment found
  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?
  The Tribunal directed the Assessing Officer to treat the returns as valid, by condoning the delay, for those years in which the defect had in fact been removed. The proviso to s.139(9) was the source of the direction: where the defect is cured before the assessment is made, the delay can be condoned and the return treated as valid.
• Niranjan Lal Gupta v ITO ITATCuts both waysNo later treatment found
  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?
  No. The Tribunal held that both returns were defective under s.139(9) because the self-assessment tax had not been paid, that the Assessing Officer should have directed the assessee to rectify the defect and had issued no defect notice at all, and that the assessment could not simply be built on the original return. The entire assessment was set aside and the officer directed to pass a fresh order under s.144.
• CBDT letter of 12 December 2017 on defective returns selected under CASS CBDT Circulars & InstructionsCuts both waysValidity unconfirmed
  What is the department's own instruction on what an officer must do when a s.139(9) defect has not been cured and the case is under scrutiny?
  The Board's letter states that under the proviso to s.139(9) an assessee can rectify the defect until the assessment order is passed, provided the officer condones the delay, and directs that in pending cases where the defect has not been rectified the officer is immediately to initiate proceedings under s.144, and that where the defect is not removed by the time of passing the assessment order the case is to be concluded by an order under s.144.

Listed strongest first: Supreme Court, then High Court, then Tribunal, then CBDT. Nothing here has yet been read in full by a chartered accountant — open an entry to see where it came from.