TMI Blog1991 (3) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... return in this case was filed at an income of Rs. 55,82,360 on 6-12-1974 which is alleged to have been revised at an income of Rs. 53,60,580 on 22-3-1977. The ITO had passed an order under section 142(2A) on 22-1-1978 directing the assessee for compulsory audit. The assessee filed a writ petition in the Hon'ble High Court against the said order passed under section 142(2A). The Hon'ble Allahabad High Court passed an interlocutory order staying assessment proceedings till further orders. 3. Subsequently the Hon'ble High Court was pleased to dismiss the writ petition vide its order dated 3-3-1987. Consequently the stay order also ipso facto stood vacated. The department could not complete the assessment within time as it could not come to know about the vacation of the stay order. Consequently the department moved a Miscellaneous application before the Hon'ble Court in Civil Misc. Writ Petition No. 4 of 1978 and the court vide its order dated 18-10-1989 disposed of the stay application observing as under : " The writ petition in which the stay order was granted by this court on 15-2-1978 was dismissed on 3-3-1987. As a result of the dismissal of the writ petition the aforesaid in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being invalid cannot extend period of limitation for assessment. Dr. S.B. Bhargava v. CIT [1982] 136 ITR 559 (All.). (ii) Return under section 139(4) cannot be revised under section 139(5) --- Metal India Products v. CIT [1978] 113 ITR 830 (All.) (FB) (with reference to penalty under section 271(1)(a) care whether a voluntary return case be revised ? (iii) ITO v. Adarsh Construction Co. [1968] 70 ITR 796 (All.) (iv) O.P. Malhotra v. CIT [1981] 129 ITR 379 (Delhi). (v) Voluntary return filed under section 139(4) different from obligatory return filed under section 139(1) or (2) right to file revised return not applicable to voluntary return. Such revised return cannot extend period of limitation for assessment. (vi) Revised returns cannot be filed in respect of voluntary returns filed under section 139(4) case laws : (a) Vimalchand v. CIT [1985] 155 ITR 593 (Raj.) (b) Smt. Sobharani v. CIT [1986] 160 ITR 453 (Raj.) In view of our aforesaid submissions we beg to reiterate that the assessment proceedings are barred by limitation and as such it should be dropped. " We respectfully beg to submit that it is a settled law that where there is difference of opinion/deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also distinguished the Supreme Court decision in CIT v. Kulu Valley Transport Co. (P.) Ltd. [1970] 77 ITR 518 and of Allahabad High Court itself in Niranjan Lal Ram Chandra v. CIT [1982] 134 ITR 352. The Hon'ble Court in this case had held that a revised return filed in a case where return earlier had been filed under section 139(4) is invalid return in the eyes of law and thus no action on invalid return can be taken and nor it can give rise to an extension of limitation which can be availed of by a revised return filed under sub-section (5) of section 139. The decision relied upon by the learned departmental representative of Calcutta High Court in the case of Balish Singh Co. v. CIT [1987] 165 ITR 575, no doubt, is on the same facts but we cannot rely on the said decision as we, sitting at Allahabad, are bound by the decision of our own jurisdictional High Court. 8. On the reading of the provisions of section 139 it would appear that section 139 broadly contemplates the filing of the three returns one under sub-section (1), the other under sub-section (2) and the third one under sub-section (4). The return to be filed under sub-sections (1) and (2) are obligatory return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment year in which the income was first assessable. The revised return filed on 22-3-1977 was an invalid return and could not extend the period for completing the assessment. Looking to these circumstances the assessment in the case was to be completed latest by 31-3-1977 under section 153(1)(c) of the Income-tax Act. Here in this case, no such assessment was completed up to 31-3-1977 and thus as the law stood the assessment had become time barred and the ITO/assessing officer had no jurisdiction to frame assessment order in this case. 10. Even if the alternative plea is taken still the assessment framed by the ITO was beyond limitation. The assessing officer had served an order under section 142(2A) upon the assessee on 28-1-1978 and the said order was stayed by the Hon'ble High Court in a Writ Petition vide its order dated 15-2-1978, and the said writ petition was dismissed on 3-3-1987 which provides that the said order granted on 15-2-1978 automatically stood vacated. The same fact was also confirmed by the Hon'ble High Court in its order dated 18-10-1989 when a Miscellaneous Application by the revenue was filed before the Court to ascertain the position of stay. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent cannot be validy made. We would, therefore, request you to kindly drop the assessment proceeding under intimation to us. However, in case you decide to continue and complete the assessment proceeding for the year under consideration, kindly use an opportunity to make compliance to your notice. 3. We are given to understand that the Department had moved a miscellaneous Application before the Hon'ble High Court in Civil Misc. Writ Petition No. 4 of 1978, which has been decided by the Court on 18-10-1989, observing as under :--- ' The writ petition which the stay order was granted by this court on 15-2-1978 was dismissed on 3-3-1987. As a result of the dismissal of the writ petition the aforesaid interim stay order stood vacated. A note to be made to that effect. In view of the aforesaid order, the interim order dated 15-2-1978 stood vacated on 3-3-1987 when the writ petition was dismissed. This is a clarificatory order which is in cosoman with order 39 Rule 1 of the Code of Civil Procedure. Hence passing of the aforesaid order dated 18-10-1989 is in no way helpful to the Department for the purpose of racking limitation period from this day of 18-10-1989. If done so, it will ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
