TMI Blog1994 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... was allowed and the following question was referred to the Hon'ble High Court at Ahmedabad for esteemed opinion : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the revised return filed by the assessee on 5-3-1974 was a valid return ?" 3. The Hon'ble High Court disposed of IR Ref. No. 561/A/80 vide judgment dated 24-11-1993 directing the Tribunal to decide the matter afresh in light of the Instruction No. 388 issued by the Central Board of Direct Taxes, New Delhi. Accordingly, the matter has come up again for disposal before us and we have heard the learned counsel for the assessee and the learned departmental representative and also perused the materials placed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be treated as return under section 139(5) of the IT Act. The learned counsel has placed reliance on different decisions of the following cases decided by different High Courts: (1) O.P. Malhotra v. CIT [1981] 129 ITR 379 (Delhi) (2) Dr. S.B. Bhargava v. CIT [1982] 136 ITR 559 (All.) (3) Vimalchand v. CIT [1985] 155 ITR 593 (Raj.) (4) Smt. Sobharani v. CIT [1986] 160 ITR 453 (Raj.) (5) Eapen Joseph v. CIT [1987] 168 ITR 26 (Ker.). He has also argued that matter in controversy was engaging attention of higher authorities of revenue and the matter was referred by CBDT to the Ministry of Law for the opinion and the Ministry of Law tendered an opinion on 22-11-1974 on the basis of which Instruction No. 388 was issued by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved was 1971-72 as in the case before us and the return under section 139(4) was filed on 21-12-1971 while in the case before us it is filed on 17-11-1971. In the same way, revised return was filed by Dr. Bhargava on 23-3-1974 and in the assessee's case it was filed on 5-3-1974. Assessment order framed in the case of Dr. Bhargava on 25-1-1975 while in the case before us, assessment was completed on 7-2-1975. In other words, all the facts including the dates are identical in both the cases and their Lordships after going through the provisions of section 139 of the Act categorised the returns into three parts and the first was to be filed under sub-section (1) the other under sub-section (2) while the third to be filed under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is laid down by Kerala High Court in the case of Eapen Joseph. 9. Contrary view relied by the learned D.R. is laid down in the case of Mst. Zulekha Begum in which it was laid down by Calcutta High Court that an assessee can file another return subsequently even if original return was filed under section 139(4) of the Act and limitation starts from the date of subsequent returns. The same High Court followed that view in subsequent decisions of Kumar Jagadish Chandra Sinha and Balish Singh Co. and the view of Hon'ble Madras High Court and M.P. High Court is to the same effect. 10. The above discussion shall go to reveal that in spite of conflicting opinion of different High Courts on the matter in issue, the facts of the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if that Instruction is not followed then its violation will also make the order against the provisions of said instruction and assessee will get benefit of that violation. 12. The matter now is confined to the facts that in the present case, assessee has originally filed under section 139(4) of the Act and later on revised it by filing another return and that revised return cannot be treated a return under section 139(5) of the Act and that is to be treated as invalid return in view of the reasonings laid down in the case of Dr. S.B. Bhargava relied by the Counsel for the assessee and further the Instruction No. 388 dated 1-10-1975 made it obligatory on IT authorities that time limit shall not be extended in case of filing of revised ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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