TMI Blog1983 (1) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed his income as Rs. 266 derived from property, being 10 per cent share of the income from the property, held in co-ownership concern, Sadhna Enterprises as per computation of income. It is alleged that the respondent-ITO made enquiry into the aforesaid return. However, on 23-3-1981 the respondent sent a letter (Annex. 'B') to the petitioner stating that as the above return is claimed to have been filed voluntarily by him declaring total income below the non-taxable maximum limit for the respective assessment year the same is not covered by any of the sub-sections of section 139 of the Income-tax Act, 1961 ('the Act'). The same, therefore, could not be proceeded with for making of regular assessment. On the same day th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn which was invalid being not covered by any of the sub-sections of section 139. The said return had accordingly to be so ignored and this action initiated in the light of Supreme Court's judgment in the case reported on 65 ITR 607. 2. The learned counsel for the petitioner contended that the respondent committed a patent error of law in holding that the return submitted by the petitioner was invalid and that he had no jurisdiction to issue notice under section 148 ignoring the return voluntarily filed by the petitioner. He placed reliance upon the decision of the Supreme Court in CIT v. Ranchhoddas Karsondas [1959] 36 ITR 569. The contention is well founded. In the aforesaid decision the assessee voluntarily submitted return of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities wished to proceed under section 22(2), but, where the assessee himself chooses voluntarily to make a return, no question can arise under section 34 of assessment escaping and therefore there is no necessity to serve any notice under section 34.' This represents the law applicable to the facts as they are to be found in this case. In the assessment year no return of income was filed, nor was any notice served under section 22(2). There was, however, the general notice under section 22(1). A return in answer to that notice could be filed under section 22(3) before assessment, and for this there is no limit of time. It was filed on January 5, 1950. There was nothing to prevent the Income-tax Officer from taking up the retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 148 because with the return already filed there was neither an omission nor a failure on the part of the petitioner nor was there any question of assessment escaping. 4. The decision of the Supreme Court in CIT v. K. Adinarayana Murty [1967] 65 ITR 607 relied upon by the ITO for holding that if the assessment was framed on the basis of the return filed by the assessee it would be invalid, is not applicable to the present case and it was not relied upon by the learned counsel for the department in support of the notice issued by the respondent under section 148. The notice GIR No. H-201 dated 23-3-1981 (Annex. 'A') issued by the respondent under section 148 to the petitioner, therefore, deserves to be quashed. 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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