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Return Cannot Be Treated As Defective If Tax Audit Report Not Attached

We know that a good deal of discussion is going on as to whether the date of ITR is also extended, whether it is mandatory to attach the copy of the tax audit report with the return and whether the return will be defective if no tax audit report is attached to the ITR.

CA Rekha Dhamankar

We know that a good deal of discussion is going on as to whether the date of ITR is also extended, whether it is mandatory to attach the copy of the tax audit report with the return and whether the return will be defective if no tax audit report is attached to the ITR.

As per Explanation (bb) of proviso to Section 139(9) the return of income would be defective if “the return is not accompanied by the report of the audit referred to in section 44AB or where the report has been furnished prior to the furnishing of the return, by the copy of such report together with proof of furnishing the report”. On the basis of this section few experts are of the opinion that the return filed without attaching tax audit report is defective and hence the date of return is deemed to be extended and no reference in the order issues by CBDT of section 139(1) is required.

With due respect to the above opinion I beg to differ with this opinion on the following grounds-

  1. As per Rule 12 of Income tax Rules (as amended with effect from 1.4. 2010), now the return of income shall not be accompanied by any document or copy of any account or form or report of audit required to be attached with return of income under any of the provisions of the Act. Thus under the electronic filing scheme attaching all the documents and reports are done away with.
  2. Further section 139C of the Income tax Act gives powers to CBDT to dispense with furnishing any documents or reports with income tax return and the powers further extend to making the rules for the same. It says “the Board may make rules providing for a class or classes of persons who may not be required to furnish documents, statements, receipts, reports of audit or any other documents, which was otherwise under any other provisions of the Act, except section 139D, required to be furnished, along with the return but on demand to be produced before the Assessing Officer”.
  3. Section 139D also gives similar powers to CBDT to do away with the requirements of attaching documents and reports with return of income in case of electronic filing of returns.
  4. Regarding mentioning the date of tax audit report and date of uploading in the return of income, we all know that this is a lacuna which needs to be corrected by the CBDT by doing away with the requirement of these fields making non-mandatory. This will bring it in consonance with the recent order of CBDT dated 20.8.2014 of extension of date of filing of tax audit report. However, mere non mentioning the date of audit report or date of uploading of the report in the return of income will not render it defective..
  5. We have stopped attaching audit reports and any documents with the returns filed electronically since long, can it be said that all those returns were defective?

Thus even if section 139 (9) talks about the defective return it is clear from the above discussions that non attaching the audit report with the return cannot make the return defective.

(Author is a Pune Based CA and is partner with Dhamankar and Khandewale, Chartered Accountants)

Categories: Income Tax

View Comments (11)

  • Dear Rekha, points noted above are very true. Kindly guide on how to file the income tax return without incorporating the findings of AUDIT and its tax implications ?? (without finalising the TAX AUDIT REPORT ??)

  • I think we all are mixing the two things viz. preparation of income tax return and doing audit of the assessee's books as per Income Tax Audit.

    The views are surprising to state that without audit we can not prepare the Income Tax Computation. How the Income Tax Returns of the assessees who are not require to audit under Income Tax gets prepared and filed ?. Are the preparation of Computation of Income is dependent on the findings in Audit or every Assessee is required to prepare Computation of Income as per the provisions of Income Tax Act and Rules.

    The allowances and disallowances are not applicable to the assessees who are not required to get their accounts audited ?. How we consider all these and prepare the Computation of Income and Return in their cases ?

  • I want to clarify the basics with respect to some comments mentioned here:-
    1. The business assesses who are not required to get their accounts audit need not to file ITR -4 but for them ITR 4S is there and in ITR 4S one can file the ITR if he has his figures of Turnover and then he can calculate 8% and there is no other method to file the ITR of Non audit assesses. They don't require to file profit and loss account and Balance sheet in the ITR as it is required in ITR 4.
    2.Here the problem is that the date of Audit report u/s 44AB is directly connected with date of ITR u/s 139(1) and in section 119 the date of tax audit report can only be extended by extending the date u/s 139 because as per section 119(2) CBDT can only relax section 139 and not section 44AB. General Power of CBDT u/s 119(1) to issue direction and order to income tax authorities are not applicable here. This is the basic of the IT Act.Why CBDT wants to meddle with the basic scheme of the law though in the format of ITR it is written in the instructions that ITR should be filed after uploading the TAR.
    3.There was a blackout on IT site between 25th July to 20th Aug. 2014 when no return is possible to be filed on ITR site for want of TAR utility and if that was the scheme then CBDT should have declared on 25th July 2014 itself to file the ITR without TAR . All these are after thoughts to cover up the Midyear introduction of New formats of Tax audit reports.
    These are the hard facts.

  • In nut shell it is not possible to file ITR without filling the date of submission of TAR , which is a mandatory field. Hence this is a practical issue and not a academic issue.

  • In Income Tax Return name of auditor is not mentioned and return is filed before the filing of tax audit report. whether return is valid if no what is further procedure?

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