TMI Blog2001 (10) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ed loss in the business of the petitioner and asked for refund of the tax. This return, however, was declared to be invalid and/or non-existent as the writ petitioner did not file the claim of refund in the prescribed Form No. 30. In the affidavit-in-opposition it has been stated that the order of extension was not really granted and the letter of the income-tax official showing the extension is a forged document. Mr. Khaitan, the learned advocate, appearing in support of the writ petition, submits firstly that the question of invalid order of extension does not arise, as late in the month of August, 2001, certified copy of the aforesaid order of extension was obtained and it was produced before me. He submits that the impugned notice ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm No. 30 under the relevant rules. Unless it is done the return cannot be accepted to be a valid one. He contends when a thing is to be done in one manner under the law this should be done in that manner or not at all. So, the decision of the tax official is justified and valid and there is no reason to withdraw or cancel the said notice. Mr. Som further contends that under section 139(10) as was in vogue (now it has been repealed) a return of income, which shows the total income below the taxable limit, shall be deemed never to have been furnished. In this case, the writ petitioner though claimed refund of income-tax no application under section 237 of the Income-tax Act read with rule 41 was made. He contends that in the case of refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not raise such dispute at any point of time, the concerned return was submitted and received by the Department. Mr. Khaitan contends that since the return was accepted by the concerned receiving Department, the same should have been assessed assuming there is no irregularity or any defect as the Board circular dated August 21, 1987. I am unable to accept this portion of the submission of Mr. Khaitan that as it was accepted by the receiving section the same should have been assessed, by reason of the fact that a circular of the Board cannot override and/or operate inconsistently with the provision of the law for the simple reason that the Board's circular is issued under the provision of the Income-tax Act, 1961. I am of the view that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid application in the prescribed form accompanying the return, it could be held to be invalid under section 139(10) (since repealed) or not. Therefore, I reproduce the relevant portion of section 139(10): "Notwithstanding anything contained in any other provision of this Act, a return of income which shows the total income below the maximum amount which is not chargeable to tax shall be deemed never to have been furnished." In my view, the aforesaid sub-section (10) of section 139 would have been applicable in a case where the income of the assessee is below the maximum amount. It does not relate to showing loss or profit. At the relevant time the income of the assessee shown in the return was not below the maximum limit. The in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete return, that is, a return which does not comply with the provisions of section 139, may be said to be an invalid return. But the Act does not contain any provision for the rejection of an invalid return; on the contrary, under section 143(3), a duty is cast on the Income-tax Officer to assess the total income or loss of the assessee after serving on him a notice under section 143(2) and after hearing such evidence as the assessee may produce or the Income-tax Officer may gather." Therefore, I am of the view that this impugned decision of the Revenue official does not stand to scrutiny and the same is bound to be quashed and set aside. Accordingly, both the decisions are set aside. The Revenue official shall proceed to assess the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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