TMI Blog1989 (8) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to make a fresh assessment according to law? 4. Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that no effective opportunity of being heard was given to the assessee even in respect of the original return filed on 25th July, 1973 was unreasonable and perverse? In this case, the assessment year involved is 1971-72 for which the relevant accounting period is the year ended on 30th September, 1970? 2. The facts found by the Tribunal as contained in the statement of case are as under: The assessee was required to file the return under section 139(1) by 30-6-1971. No return, however, was filed by that date. The ITO issued a notice under section 139(2) on 6-9-1971. The assessee also did not file any return in response to this notice. The assessee, however, filed the return on 25-7-1973. The ITO fixed the case on several dates for hearing between 30-7-1973 and 4-3-1974. The ITO noticed some credit entries in the assessee's account books aggregating to ₹ 3,06,820. After going through the account books of the assessee and the other materials produced by the assessee, the ITO was not satisfied about the genuineness of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that once it was accepted that the return filed by the assessee on 14-3-1974 was a valid one, then it was the duty of the ITO either to accept the return or to issue a notice under section 143(2). It was pointed out that the compliance with the notice fixed for hearing on 15-3-1974 could not be made because the ITO admittedly was out of Calcutta on some official duty and that he completed the assessment on 25-3-1974 without allowing any further opportunity. It was next submitted that the ITO failed to observe the principle of natural justice and the assessment order was ab initio void on that ground. On behalf of the department it was admitted that there was no effective opportunity of hearing allowed to the assessee on the original return, inasmuch as the ITO himself was out of Calcutta. However, reliance was placed on the order of the AAC and further it was contended by the department that the return submitted on 14-3-1974 was not a valid return. It was next submitted that there was no illegality in the assessment as such, even if there was no opportunity allowed to the assessee to comply with the terms of the notice issued under section 143(2). It was suggested that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 139(1) within 30-6-1971 as required by the Statute. The assessee also failed to furnish any return pursuant to the notice issued by the ITO under section 139(2) on 6-9-1971. The assessee ultimately filed a return on 25-7-1973. There was hearing of case on several dates between 30-7-1973 and 4-3-1974. The ITO had noticed certain credit entries, which, according to the ITO, could not be adequately explained by the assessee. It was at that stage when on 14-2-1974 the assessee filed the second return. That even though the original return was filed under section 139(4), the assessee filed a revised return under section 139(5), cannot be disputed. But there is another aspect of the case. The AAC has pointed out in his order that in the instant case it is noticed that the original return was filed on 26-7-1973 for the assessment year 1971-72. This return was obviously under section 139(4) because it was not filed within the time specified under section 139(1) nor was it in compliance with the notice under section 139(2)dated 6-9-1971 issued by the ITO for this year which was served on the assessee on 11-10-1971 as per acknowledgement in the file. As per IT record there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drag on the proceedings and prevent the Income-tax Officer from completing the assessment immediately. For all these reasons he rejected the assessee's first contention. The Tribunal has failed to appreciate the scope and nature of the controversies on this aspect of the question. The case against the assessee is that no mistake has been committed by him while filing the return. Unless the assessee discovers any omission or any wrong statement in the return, he cannot file any revised return. The wording of the relevant section is very clear and the point is well-settled. 7. Section 139, sub-section (5): Revised return.-If the person who has furnished a return discovers any omission or wrong statement therein, he may furnish a revised return at any time before the assessment is made. But the benefit of this provision cannot be claimed by a person who has made a false return knowing it to be false.... CIT v. Badridas Ramrai Shop [1939] 7 ITR 613 (Nag.); CIT v. Angara Satyam [1959] 37 ITR 230 , 238 (AP); A.RM.A.L.A. Arunachalam Chettyar v. CIT 6 ITC 58, 63 (Mad.). In this case the difference between the amount mentioned in the original return filed and that in the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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