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TMI Blog2013 (2) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... said return declared an unabsorbed depreciation to the tune of Rs.2,42,996/- for the assessment year 1993-94. Intimation under section 143 (1) (a) was issued on 21.9.1994 and served on the assessee on 24.11.1994. The assessee claimed to have filed a revised return for the purpose of correcting the mistake in its claim by declaring the amount of unabsorbed depreciation as Rs.4,14,345/-. The assessee challenged this intimation under section 143 (1) (a) before the Deputy Commissioner of Income Tax (Appeals), Belgaum. The Dy. Commissioner by its order dated 23/11/1995 directed the assessing authority to consider the revised return in the light of the judgment of Madhya Pradesh High Court reported in 170 ITR 556 and Calcutta High Court in 137 ITR 722. The Revenue challenged this order and filed a Second Appeal before the Tribunal. Initially the Tribunal passed the order dated 12.12.2002 and set aside the order of the Dy. Commissioner of Income Tax (Appeals) and remanded the matter back to the CIT (A). A review application was filed by the appellant assessee under section 254 seeking rectification of the order dated 12.12.2002.. The Tribunal, however, dismissed the miscellaneous applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and the said mistake was sought to be rectified by filing a rectified return. He submitted that it was an admitted position that the said order under section 143 (1) (a) dated 21/9/1994 was not served on the assessee when he filed the rectified return. It was, therefore, submitted that it could not be said that the appellant has filed a revised return. It was contended that the Tribunal therefore had erred at the very outset in treating the rectified return as a revised return. 5. On the other hand, Ms. Dessai, the learned counsel appearing on behalf of the Revenue submitted that the Dy. Commissioner of Income Tax (Appeals), Belgaum, had clearly erred in relying on the judgment of the Madhya Pradesh High Court and of the Calcutta High Court, as those judgments are overruled. She submitted that the finding given by the Dy. Collector of Income Tax was without reference to the provisions of Section 139 sub clause (5). It was submitted that the appellant had filed the return in September, 1993. It was admittedly after the period of filing the return was over and,as such, in view of the provision of section 139 sub clause (5), the petitioner was not entitled to file the revised ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. (Proviso omitted as unnecessary). [4 (a) Any person who has not furnished a return within the time allowed to him under sub-section (1) or subsection (2) may before the assessment is made furnish the return for any previous year at any time before the end of the period specified in clause (b), and the provisions of clause (iii) of the proviso to sub-section (1) shall apply in every such case. (Subs. By Finance Act No.19 of 1968, (w.e.f 1-4-1968)]. (b) The period referred to in clause (a) shall be- (i) where the return relates to a previous year relevant to any assessment year commencing on or before the 1st day of April, 1967, four years from the end of such assessment year; (ii) where the return relates to a previous year relevant to the assessment year commencing on the 1st day of April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f filing a revised return only to those persons who fall within the four corners of section 139 sub sections (1) and (2) of the said Act. If the legislature had intended to also give the same benefits to an assessee who had not furnished the return within time, it would have said so in sub clause (5). The very fact that sub clause 4 is not referred to in sub clause (5) clearly indicates the intention of the legislature. 9. The Apex Court in the case of 'Jagdish Chandra" (supra) has in terms considered this aspect and has held that the said benefits could not be made applicable to a person who does not file his return within the time allotted to him under sub section (1) and sub section (2). The Apex Court in paragraph 11 of the said judgment has observed as under: "The first question is whether a person who files a return under Section 139(1) is entitled to file a revised return before the assessment is made. We think not. The furnishing of a revised return is provided by sub-section (5) of Section 139. According to this sub-section" any person having furnished a return under sub-section (1) or sub-section (2)" may furnish a revised return at any time before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law and could not have been treated and acted upon as revised returns contemplated by sub-section (5) of Section 139 - which means that Section 153(1)(c) was not attracted in this case. Indeed this is the view taken by all the High Courts as conceded by Mr. Ashok Sen. See O. P. Malhotra v. Commissioner of Income Tax (129 I.T.R. 379 Delhi), Dr. S.B.Bhargavav. Commissioner of Income Tax (136 I.T.R. 559 All), Vimal Chand v. Commissioner of Income Tax (155 I.T.R. 593-Raj.) and Eapen Joseph v. Commissioner of Income Tax (168 I.T.R. 26 - Kerala). Only the Calcutta High Court has taken the contrary view with which we are unable to agree." 10. Learned counsel for the appellant had urged that the Apex Court had not given any decision on the point of distinction between a revised return and a rectified return. We are unable to accept the said submission. The Apex Court after taking into consideration the view taken by the High Court thereafter had observed that the High Court had drawn a distinction between a revised return and a rectified return and in that context had observed that there may be distinction. The Apex Court, however, clearly has maintained in its conclusion that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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