9911796707
TMI Blog2006 (5) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, profit and loss account, balance sheet, audit report could not be filed with the return of income. A letter was issued by the Assessing Officer dated 29-10-1993 (page No. 24 of the paper book) pointing out the aforesaid defects that audit report and other documents are not filed by the assessee along with the return. Accordingly, 15 days' time was allowed and further it was mentioned in the said letter that in case the assessee fails to rectify the defects within 15 days, return of income could be treated as invalid. In reply to this letter, the assessee vide its letter dated 3-11-1993 (page No. 23 of the paper book) mentioned that the accounts of assessee has not been audited. Therefore, details could not be submitted and the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer - learned CIT(A) was not justified in upholding the action of the Assessing Officer. 3. Learned AR has cited various decisions in the grounds of appeal. 4. We have heard both the sides and also perused the materials on record. It is an undisputed fact that audit report and final balance sheet, profit and loss account were not furnished by the assessee while filing the return on 29-10-1993. On the same day, defect notice was issued by the Assessing Officer with a request to rectify the defects within 15 days, failing which the return shall be treated as invalid. On 3-11-1993, the assessee gave its reply and requested to extend the time up to 3 months for filing the aforesaid materials for rectification of the return as mentioned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee to rectify the defect within a period of 15 days and that period can be extended at the request of the assessee by the Assessing Officer. It has been further provided that if the assessee may rectify the defects within 15 days or within the extended period but before the assessment is made, the Assessing Officer may condone the delay and treat the return as valid return. Therefore, discretion has been allowed to Assessing Officer so that the assessee may not be punished for technical reasons. Period for rectification of return may be extended by the Assessing Officer up to the date of assessment. It is settled law that discretion, if any, vested with an authority, shall be exercised judicially. Under section 292B no return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one by the assessee in this case. Although no order was passed on that letter, it will be presumed that the Assessing Officer had no objection in allowing three months' time as prayed by the assessee. Moreover, under the proviso to section 139(9), such time can be allowed by the Assessing Officer up to the date of assessment. Therefore, we cannot find any reason as to why the return is to be treated as invalid, particularly when extension of time was not rejected by the Assessing Officer. 4.2 The assessee placed reliance on the Circular of CBDT's Instruction No. 1348, dated 30-8-1980 in relation to section 139(9) of the Income-tax Act. Relevant portion of the instruction is quoted below :-- "Again clause (e) of the Explanation requires th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the return of income as invalid under section 139(9) of the Act. In other words, the entire provision of section 139(9) was not followed by the Assessing Officer. The Assessing Officer failed to consider the provision for extension of time, which has been envisaged in the section 139(9) itself. Looking to the circumstances of the case, we are of the view that so far as revised return is concerned, it is only consequential. The revised return was treated as infructuous because the original return was treated as invalid. In view of the discussion made above, we hold that the original return is to be accepted as valid return and the assessee has duly rectified the defects by way of filing the revised return, we direct the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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