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.

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.

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