TMI Blog1972 (3) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, a company incorporated under the Indian Companies Act, in Form A under rule 19 on June 20, 1961, showing a loss of Rs. 3,94,196. This return was not accompanied by the balance-sheet and the profit and loss account as the same were not ready. Later on, on August 26, 1962, the profit and loss accounts and the balance-sheet were submitted. Thereafter, the assessee filed a revised return on October 30, 1962. Although it was also in Form A under rule 19 of the old Act, the return was complete otherwise. The Income-tax Officer had issued a notice under section 22(2) of the Indian Income-tax Act, 1922, and the first return was filed in compliance thereof. After the revised return was filed by the assessee the Income-tax Officer issued a notice to the assessee under section 143(2) of the Income-tax Act, 1961, and finally completed the assessment under section 143(3) of the Act. The assessee, feeling aggrieved, filed an appeal against the assessment and, inter alia, took the ground that assessment could not legally be made under section 143(3) of the 1961 Act as the original return had been filed before 1st April, 1962, under the provisions of the 1922 Act. The Appellate Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led on 30th October, 1962, i.e., after 1st April, 1962. On these findings the Tribunal held that the case was covered by clause (b) and not clause (a) of sub-section (2) of section 297 of the 1961 Act. The contention of the assessee is that as the return was filed originally before April 1, 1962, the provisions of clause (a) and not clause (b) would be applicable. I am unable to hold that the return filed by the assessee in June, 1961, was a nullity or suffered from such invalidity as to make it equal to no return within the meaning of section 297(2)(a) of the 1961 Act. The defect that the return was in Form A which was not meant for the company will not vitiate the return. No error in the particulars supplied has been pointed out. Similarly, the mention in the verification clause of a "firm" instead of "company" will not make the return invalid as the signatures in the verifying clause did mention the name of the assessee as Dhampur Sugar Mills Ltd. The circumstance that the return was not accompanied by the profit and loss account or the balance-sheet will no doubt render the return incomplete, but will not make it invalid so as to be treated as non est, for purposes of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclined to accept the contention. A person is penalised for the wrong act that he does and the offence becomes complete as soon as the act is done. It cannot be cured by subsequent mending. It is on this principle that an assessee can be penalised for concealing the particulars of his income or deliberately furnishing inaccurate particulars of such income. But, when an assessment has to be made the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return. The earlier return, after a revised return has been filed, cannot form the basis of assessment although it may be used to indicate the conduct of the assessee. Hence, for the purpose of assessment of income, the effective return must be the revised return filed by the assessee ultimately. There is a distinction between a revised return and a correction of the return. If the assessee files some application for correcting a return already filed or making amends therein, it would not mean that he has filed a revised return. It will still retain the character of an original r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (b) of sub-section (2) of section 297 of the 1961 Act in accordance with the procedure specified in the Act of 1961. I am accordingly of the opinion that the Tribunal was right in holding that, on the facts and circumstances of the present case, the assessment was validly made under section 143(3) of the Income-tax Act, 1961, and answer the question referred to us in the affirmative. The Commissioner of Income-tax is entitled to his costs which I assess at Rs. 200. Counsel's fee is assessed at the same figure. PATHAK J.-I agree with my brother Hari Swarup on the several points considered by him, but with great respect I am unable to agree that the case can be said to fall under section 297(2)(b) of the Income-tax Act, 1961. In my opinion, it is section 297(2)(a) which applies. The assessee filed his original return of income on June 20, 1961. A proceeding came into existence. On April 1, 1962, when the Income-tax Act, 1961, came into force, section 297(2)(a) was immediately attracted to that proceeding. Accordingly, the proceedings for the assessment of the assessee for the year to which the return pertained could be taken and continued as if the Income-tax Act, 1961, had n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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