JUDGMENT - DEVADHAR J.P., J.:-The short question raised in this petition is, whether the authorities under the Income-tax Act were justified in treating the revised return for the assessment year 1991-1992 and the original return for the year 1992-1993 as invalid under section 13(9) of the Income Tax Act.

2. Although, the writ petition pertains to the assessment year 1991-92 and 1992-93, Mr. Pardiwala, learned Counsel appearing on behalf of the petitioner fairly stated that after treating the revised return for assessment year 1991-92 as invalid, the Assessing Officer has passed assessment order under section 143(3) of the Income tax Act (I.T. Act for short) and the appeal filed against the said assessment order is pending. He submitted that the petitioner is willing to persue the appellate remedy for AY 1991-92, however, it may be clarified that the petitioner is entitled to raise all contention before the appellate authority. In the present case, the Tribunal has held that even though the return is held to be invalid the assessee is not debarred from furnishing any evidence in support of any claim though not made in the original return. The said finding of the Tribunal has not been disputed by either side. Therefore, for the assessment year 1991-92 the assessee is permitted to persue the appellate remedy and it is clarified that as held by the Tribunal the assessee would entitled to furnish any evidence in support of any claim though not made by it in the original return. Thus, the controversy in the present petition is restricted only to the action taken under section 139(9) of the I. T. Act for the assessment year 1992-93.

3. The facts, relevant for assessment year 1992-93, are as follows :--

The accounts of the petitioner for the year ended on 31st March, 1992 (assessment year 1992-93) were duly audited under the Companies Act, 1956 and a report of the statutory auditor was obtained on 2nd June, 1992. The said accounts were adopted by the shareholders at an annual general meeting held on 21st July, 1992. A company by name Esab (India) Limited, was interested in acquiring the shareholding of the petitioner company. For that purpose, a firm of Chartered Accountants viz. M/s. S.R. Batliboi Company was appointed to carry out a special audit and investigate into the financial affairs of the petitioner. On 24th December, 1992, the said M/s. S.R. Batliboi Co., Chartered Accountants submitted a report stating therein that the petitioner's profits for the year in question were overstated in the accounts.

4. The petitioner obtained an audit report under section 44-AB of the I.T. Act from its statutory auditors on 30th December, 1992. In the said report the auditors specifically noted that they have considered the findings in the report of M/s. S.R. Batliboi Co. while framing the report under section 44-AB of the I.T. Act.

5. On 30th December, 1992 the petitioner filed the return of income for assessment year 1992-1993 declaring loss of Rs. 66,28,030/-. Along with the return the petitioner filed the audited profit and loss account and the balance sheet which was adopted at the annual general meeting held on 21st July, 1992. The petitioner had also annexed the report under section 44-AB as obtained on 30th December, 1992. A computation of income wherein effect was given to the findings in the report of M/s. S.R. Batliboi Co. was also filed.

6. On 11th February, 1993, the Deputy Commissioner of Income Tax Special Range-I, Pune (hereinafter referred to as the Assessing Officers issued a notice under section 139(9) of the Income Tax Act proposing to treat the return for the assessment year 1992-93 as invalid if the defects in the return mentioned therein were not removed within 115 days from the receipt of the said letter. According to the assessing Officer the return was defective in terms of Clause (e) of the Explanation to section 139(9) of the I.T. Act. In other words, according to the assessing Officer, the profit and loss acco

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