S.N. Sahay, J. - (1.) Since a common question of law has been raised in both the writ petitions, they are being disposed of by a common judgment.
(2.) In Writ Petition No. 3094(MB) of 1991, it will appear from a perusal of the impugned order contained in armexure-5 to the writ petition that the petitioner-company filed a return of income for the assessment year 1990-91 declaring a loss of Rs. 49,64,09,180. The petitioner had filed a tentative profit and loss account along with the return and the tax audit report. The Assessing Officer took the view that the return was defective, inasmuch as no compliance was made with the provisions contained in Clauses (bb) and (d)(i) of the Explanation to Sub-section (9) of Section 139 of the Income-tax Act, 1961. The Assessing Officer was of the opinion that, since the petitioner had filed only a tentative profit and loss account and the audit report filed by the petitioner was also based on the same, it cannot be said that the petitioner has submitted the audit report as required by Section 44AB in respect of the profit and loss account of the petitioner-company. It appears that an opportunity was given by the Assessing Officer to the petitioner-company to remove the defects which were not removed to the satisfaction of the Assessing Officer. Therefore, the Assessing Officer passed the impugned order to the effect that, as the assessee has failed to remove the defects, the alleged return filed on December 31, 1990, would be treated as an invalid return and non est and it would be deemed that the assessee had not filed any return for the assessment year 1990-91.
(3.) In Writ Petition No. 1356(MB) of 1992, the impugned order dated August 22, 1991, passed by the Assessing Officer contained in annexure-6 to the writ petition shows that the assessee, U. P. State Sugar Corporation Ltd., filed its return of income on December 20, 1990, declaring a loss of Rs. 1,59,89,95,087. The return was accompanied by an audit report in Form No. 3CA and provisional profit and loss account in annexure-D signed by the Chairman only and unsigned in annexures-E to H 1(i) to 1(iii). No balance-sheet had been filed with the return. The defects were intimated to the assessee. The petitioner was requested to remove the defects by a certain date. The petitioner submitted a reply and, after consideration of the same, it was held by the Assessing Officer that, though the assessee-company has furnished an audit report in Form No. 3CA on the basis of the provisional profit and loss account, it has failed to fulfil the complete requirements of Section 139(9)(e) of the Income-tax Act, 1961. "Accordingly, it was held by the Assessing Officer that the report was invalid and non est, under Section 139(9) of the said Act and the provisions of the Act are to be applied as if the assessee has failed to furnish a return".;