TMI Blog1979 (10) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... eon, despite the fact that the said return was not in the prescribed form and was not accompanied by the prescribed statements ? " The assessee is a firm consisting of three partners which filed a return in Form No. 3 on March 10, 1968, disclosing an income of Rs. 1,90,000 for the assessment year 1967-68. The ITO made a provisional assessment under s. 141 of the Act on May 20, 1968, and issued a demand requiring the assessee to pay Rs. 21,516 by way of tax. On August 20, 1968, the ITO sent to the assessee a letter stating that he should file the return in Form No. 2 and enclosed a form with that letter. The assessee paid the tax provisionally assessed on September 2, 1968. He took action on the ITO's letter dated August 20, 1968, only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not justifiable for the department to charge interest under s. 139(1) for the period beyond March 10, 1968, after making a provisional assessment on the basis of the return submitted on March 10, 1968. It was also pointed out that it was not open to the department to contend that the said return was invalid and that interest should be charged for the period subsequent to March 10, 1968. This order of the Tribunal is now under reference on the question already extracted. Section 139(1), as it stood at the relevant time, provided as follows : " Every person, if his total income ... exceeded the maximum amount which is not chargeable to income-tax, shall furnish a return of his income ...... in the prescribed form and verified in the presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id so that the return filed on October 15, 1970, in Form No. 2 could alone be taken as the proper or appropriate return. Section 139(1), as already extracted, requires the assessee to file the return in the prescribed form. In Malik Damsaz Khan v. CIT [1947] 15 ITR 445, the Privy Council was concerned with a case where the assessee who had been carrying on business as a supply contractor submitted a return in pursuance of a notice issued under s. 22 of the Indian I.T. Act, 1922, showing an income of Rs. 10,000 under the head " Business ". The declaration was duly signed but the details required by note 5(b) of the Form were not supplied. The assessee did not have proper accounts, and he admitted that the return had been filed only on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rements in its submission. The Supreme Court in CIT v. Ranchhoddas Karsondas [1959] 36 ITR 569, considered the validity of a return where the assessee had shown the income below the taxable limit. The Supreme Court pointed out : " It is a little difficult to understand how the existence of a return can be ignored, once it has been filed ...... No doubt it is futile for a person not liable to tax to rush in with a return, but the return in law is not a mere scrap of paper. It is a return, such as the assessee considers represents his true income. " Though the assessee in the present case had used a wrong form, it did not mean that the return was non est so that the return which was filed on October 15, 1970, could be treated as the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 10, 1968. Though in the present proceedings the Commissioner has directed levy of interest only from March 11, 1968, up to October 15, 1970, in effect what he has done is to ignore the return filed on March 10, 1968, and proceeded to hold that interest was liable to be charged from January 1, 1968. The Commissioner was not acting within the scope of the powers under the Act, as in exercising his power of revision he was doing what the ITO had to do. In the circumstances, as the ITO himself had acted on the return and could not have charged interest subsequent to March 10, 1968, which is the date of filing of a return before him, the Commissioner had no power to do so. In this case, there is no error on the part of the ITO which can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been a return, though an invalid return, on the basis of which an assessment order under s. 143(3) of the Act has been made. This cannot be treated as best judgment assessment as if no return has been filed. " This decision lays down that even an " invalid " return or a return in a wrong form was a proper return. If in a case where the assessee filed the return in a wrong form prescribed by a different statute that return cannot be said to be a non-existent return, the position would be a fortiori where the assessee files a return by using a wrong form prescribed by the same statute. For the above reasons, the question referred is answered in the negative and in favour of the assessee. Tile assessee will be entitled to his costs. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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