Section 139(9)

Section 139(9) — the law in short

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

• Mangalam Publications v CIT Supreme CourtHelps taxpayer
  You filed without books because they were seized. Is that a failure to disclose?
  Not where the primary facts were disclosed some other way. The duty to disclose does not extend beyond primary facts; once they are disclosed, the burden shifts to the officer to draw the right inferences. The reassessments were quashed.
• Reddy Vanga Ventures LLP v PCIT High CourtHelps taxpayerNo later treatment found
  The officer declared your return invalid for want of an audit report when your turnover was below the audit threshold. What is the remedy?
  The High Court quashed the orders invalidating the return and the order in revision, and remitted the matter to the Assessing Officer to re-examine the turnover. Where the record, including the officer's own finding, showed that the turnover was below the threshold at which audit is required, the premise on which the return had been held defective under s.139(9) did not stand.
• Kunal Structure (India) Pvt Ltd v Dy CIT High CourtHelps taxpayer
  My return was defective and I cured the defect ten months later. Does the s.143(2) clock run from the original filing or from the day I removed the defect?
  From the original filing. Where the defect is removed within the time the Assessing Officer allowed, the return relates back to the date on which it was originally furnished, and the six-month limitation for a s.143(2) notice is counted from the end of the financial year in which that original return was filed. On the facts the scrutiny notice was issued nearly a year after that period had run out and was held barred. The Revenue's special leave petition was dismissed.
• CIT v S.R. Batliboi & Associates High CourtHelps taxpayerHigh Courts differ
  The revised partnership deed was not filed with the return but was produced during the assessment. Does s.185 still disallow the partners' remuneration?
  No, on this judgment. The Calcutta High Court held that s.185 read with s.184, although worded in emphatic terms, is not intended to be mandatory. The Assessing Officer had refused to treat the return as defective under s.139(9); having refused that, he could not simultaneously hold the return to be in derogation of s.184(4) and disallow the deduction. The disallowance of Rs. 4,49,60,000 of partners' remuneration was deleted.
• Indglonal Investment & Finance Ltd v ITO High CourtCuts both ways
  My client's assessment has become final and I now want the tax back because the levy was wrong. Can I run that argument as a refund claim, or in a writ petition based on Article 265?
  No. In a claim under Chapter XIX section 242 forbids the assessee from questioning the correctness of an assessment or other matter that has become final and conclusive, or asking for a review of it; the authorities cannot go behind the assessment order while examining a refund. Article 265 is not violated where tax has been collected under a valid enactment and the 'wrong' order has become final — the remedy is to attack the order itself, in appeal, revision or a writ, and refund follows only as a consequence of that.
• 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.
• Murali Export House v CIT High CourtHelps taxpayerNo later treatment found
  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.
• CIT v Rai Bahadur Bissesswarlal Motilal High CourtHelps taxpayer
  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?
  No. The Calcutta High Court held that the defects specified in s.139(9) are illustrative and not exhaustive. The corollary is the one that helps the taxpayer: because the provision is a curative one, an omission such as the audit report of a trust not being filed with the return can be made good during the assessment proceedings, and the officer cannot then ignore the report or the return.
• Electronfab Engineering Pvt Ltd v ITO ITATHelps taxpayerNo later treatment found
  You forgot to opt for s.115BAA in the original return and then filed Form 10-IC and a corrected return in answer to a s.139(9) notice. Does the option hold?
  The Tribunal held that it does. Form 10-IC filed on 2 December 2024 and the corrected return filed on 6 December 2024 in answer to the defect notice sufficiently demonstrated the intention to opt for the concessional regime, and the procedural lapse in not exercising the option in the original return could not defeat the substantive claim where the statutory conditions were otherwise met.
• Kapoor Industries Ltd v CPC ITATHelps taxpayerNo later treatment found
  You asked for seized cash to be adjusted against your self-assessment tax and the CPC simply refused the credit. Should it have issued a s.139(9) notice instead?
  The Tribunal allowed the appeal and directed that the money lying seized be appropriated towards the self-assessment tax liability. It recorded that no notice under s.139(9) had been issued by either the CPC or the jurisdictional Assessing Officer treating the return as defective, and that the assessee's request having been neither rejected nor decided amounted to acceptance.
• 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.
• Gram Sewa and Viklang Shayta Sanstha v DCIT ITATHelps taxpayerNo later treatment found
  The trust's Form 10B did not go with the return and the exemption has been refused. Does filing it in answer to the s.139(9) notice save the claim?
  Yes. The Tribunal held that the authorities were not justified in refusing the exemption under s.11 where the assessee had filed the audit report in answer to the defect notice under s.139(9) and before the assessment proceedings were completed. A highly technical view of the timing defeats the purpose of the requirement where substantive compliance has been made.
• Luxury Goods Retail Pvt Ltd v DCIT ITATHelps taxpayerNo later treatment found
  You filed a loss return on paper within the due date because the portal would not let you in. Has the carry-forward gone?
  No. The Tribunal held that a return filed manually within the due date under s.139(1) is a valid return, and that filing it on paper rather than electronically makes it at best a defective return and not an invalid one. Section 292B protects a return that substantially complies with the intent of the statute, and the carry-forward of the loss could not be refused on that ground.
• ACIT v Prime Securities Ltd ITATHelps taxpayerNo later treatment found
  The return was signed by the company secretary instead of a director. Is it a nullity, or a defect you can cure?
  A defect you can cure - decided on the preponderance of judicial opinion. The Tribunal recorded that the issue is one on which more than one view is possible but that the preponderance of judicial opinion is more in favour of the assessee, and directed that the assessee be treated as having filed a defective return on 31 December 1991 which was cured on 15 October 1992, so that the return stands as filed on the original date. A return signed by a person not authorised by s.140 is treated as a curable defect within s.139(9) read with s.292B rather than as a nullity.
• JCIT v Tata Cummins Ltd ITATHelps taxpayerNo later treatment found
  The officer's order under s.139(9) says your return is invalid and that you are not entitled to carry forward the loss. Can he decide that in a s.139(9) order?
  No. The Tribunal held that an order under s.139(9) can be made only to determine whether there was a defect in the return and whether it was rectified. An officer who goes on to rule on entitlement to carry forward the loss has made an assessment order, with the consequence that it is appealable. On the facts the Tribunal also held that the acknowledgement sheet is not part of the return prescribed under Rule 12, and that a signature defect, once removed, relates back to the date the return was originally filed.
• Shree Jagdamba Emery Stone v ITO ITATHelps taxpayerNo later treatment found
  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.
• 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.