TMI Blog1984 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... 1965, and August 17, 1970, the assessee suo motu filed its first set of returns of income respectively, for the two years under reference which were not accompanied by the profit and loss account and balance-sheet as required under the Act and the Rules made thereunder. Thereafter, on March 30, 1969, and February 22, 1973, the assessee filed second set of returns respectively, for the two years under reference which were accompanied by the profit and loss account and balancesheet. Since the first set of returns filed on September 10, 1965 and August 17, 1970, were not accompanied by the profit and loss account and balance-sheet, the Income-tax Officer ignored the same and completed the assessment on February 26, 1970, and February 15, 1974, on the basis of the second set of returns filed by the assessee on March 30, 1969, and February 22, 1973, respectively, for the two years under reference. On appeal before the Appellate Assistant Commissioner, it was contended on behalf of the assessee that the Income-tax Officer should not have ignored the first set of returns which were filed on September 10, 1965, and August 17, 1970, and if that contention of the assessee was accepted, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no discrepancy between the income that was shown in the first return and the income that was shown in the second return for the assessment year 1970-71. There was only a minor discrepancy in the income that was shown in the first return for the assessment year 1964-65 from that shown in the second return. It was argued that even if a return is not accompanied by the profit and loss account and the balance-sheet, the return could not be regarded as invalid. The Income-tax Officer was competent to act upon the first return. There was no scope for filing a revised return under section 139(4) and, therefore, the second return was void. The period of limitation should be computed from the date of filing of the first return and the assessment orders that were passed were clearly barred by limitation. The assessee could file a revised return only (1) if he had furnished return under sub-section (1) or sub-section (2) of section 139, and (2) discovered any omission or wrong statement in the return. Both the conditions had to be fulfilled before a revised return could be filed under section 139(5). The argument of the assessee is that the second set of returns in the facts of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file a return within the time specified in section 139(1). Section 139(2) empowers the Incometax Officer to issue a notice to any person who, in the opinion of the Income-tax Officer, is assessable under the Act and require him to furnish a return within 30 days from the date of service of the notice. The notice under section 139(2) may be served even before the expiry of the time to file a return under section 139(1) or after that time has expired. If a person assessable to tax does not file any return at all under section 139(1) or even pursuant to a notice under section 139(2), the Income-tax Officer may pass an assessment order under section 143(3) or under section 144 of the Act within the period of limitation set out in section 153 of the Act. The assessee, however, has a right to file a return of income at any time before an order of assessment is passed. Sections 139(4)(a) and 139(5) are as follows: "(4)(a) Any person who has not furnished a return within the time allowed to him under sub-section (1) or sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be filed under section 139(1). These were filed beyond the time-limit prescribed by section 139(1) but before the assessments were made by virtue of the enabling provision of section 139(4). Therefore, the second set of returns, in my judgment, are nothing but returns under section 139(1) which were filed belatedly under the enabling provision of section 139(4). I was referred to two judgments of this court. In the case of Mst. Zulekha Begum (Khatoon) v. CIT [1981] 129 ITR 560, it was held by a Division Bench presided over by my learned brother, Dipak Kumar Sen J., that if the assessee, after having filed a return under section 139(4), files another return subsequently, it is to be assumed that he has given go by to the return filed previously and that so far as he is concerned, the return filed subsequently is the correct and proper return. When the Income-tax Officer accepts the return filed subsequently and proceeds to assess thereunder without any objection from the assessee, it would not be open to the assessee to contend later that the return filed subsequently was invalid. It was specifically argued in that case that a revised return under section 139(5) could on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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