2013 (2) TMI 266 - HC - Income Tax

Invalidity of revised return - contention of the assessee that the said return was filed before the due date for filing the return u/s. 139 (4) thus it could be deemed as a rectified return u/s. 139 (4) and not a revised return u/s 139 (5) - Held that - Benefits of sub clause 5 of Section 139 clearly stipulates that it is applicable in respect of applications which are filed under section 139 sub clause 1 and 2. It does not make any reference to a delayed return or a return filed after the stipulated time, as envisaged under section 139 (4). Thus Section 139(5) would not apply to the applications which are filed under section 139 (4). In the present case, it is an admitted position where the appellant had not furnished the return within time allotted to him under sub sections (1) and (2) and therefore, his case clearly falls within the provision of section 139 (4). Section 139 (5) merely stipulates that it is applicable to any person who has furnished the return under sub sections (1) or (2). In the present case, therefore, if the appellant had filed the return in time, and thereafter had filed a rectified return, he could be permitted to do so under the said provision. Therefore, from the aforesaid provisions it can be seen that the Legislature in its wisdom had intended to give the benefits of filing a revised return only to those persons who fall within the four corners of section 139 sub sections (1) and (2) of the said Act. If the legislature had intended to also give the same benefits to an assessee who had not furnished the return within time, it would have said so in sub clause (5). The very fact that sub clause 4 is not referred to in sub clause (5) clearly indicates the intention of the legislature. See Kumar Jagdish Chandra Sinha (By Legal Representatives) Versus CIT 1996 (4) TMI 5 - SUPREME COURT wherein held that the rectified return was in fact a new return. Thus under section 139 (5), it is not open for the appellant to either rectify or revise his return after there was a delay in filing a said return in time. Viewed from any angle, there is no infirmity in the order passed by the ITAT (Appeals) - against assessee.

Issues Involved:

1. Validity of the revised return filed under section 139(4) of the Income Tax Act.
2. Applicability of section 139(5) to returns filed under section 139(4).
3. Distinction between a revised return and a rectified return.
4. Interpretation of the Supreme Court judgment in the case of "Kumar Jagdish Chandra Sinha (dead) Through LRs etc., Vs. Commissioner of Income Tax, West Bengal".

Issue-wise Detailed Analysis:

1. Validity of the revised return filed under section 139(4) of the Income Tax Act:

The appellant challenged the judgment of the ITAT, Panaji, which held that the revised return filed by the appellant was invalid. The appellant had filed the original return on 30/9/1993, after the due date of 31/8/1993, declaring unabsorbed depreciation. Subsequently, a revised return was filed to correct the depreciation amount. The Tribunal, however, dismissed the appellant's claim, treating the revised return as invalid under section 139(5) since it was filed after the due date.

2. Applicability of section 139(5) to returns filed under section 139(4):

The court examined the relevant provisions of section 139, particularly section 139(4) and section 139(5). Section 139(5) allows for the filing of a revised return if the original return was filed under section 139(1) or 139(2). The court noted that section 139(5) does not mention returns filed under section 139(4), which pertains to delayed returns. The court concluded that the benefits of section 139(5) do not apply to returns filed under section 139(4), reinforcing that a revised return cannot be filed if the original return was delayed.

3. Distinction between a revised return and a rectified return:

The appellant argued that the revised return should be considered a rectified return. However, the court referred to the Supreme Court judgment in "Kumar Jagdish Chandra Sinha" which clarified that a revised return under section 139(5) is distinct from a rectified return. The court emphasized that the Supreme Court had already addressed this issue, stating that a revised return filed under section 139(4) is not valid under section 139(5). The court rejected the appellant's argument, maintaining that the revised return was indeed a new return and not merely a rectification.

4. Interpretation of the Supreme Court judgment in the case of "Kumar Jagdish Chandra Sinha (dead) Through LRs etc., Vs. Commissioner of Income Tax, West Bengal":

The appellant contended that the Supreme Court had not explicitly decided the distinction between a revised return and a rectified return. The court disagreed, stating that the Supreme Court had clearly addressed this issue, concluding that section 139(5) does not apply to returns filed under section 139(4). The court highlighted that it is not within the High Court's purview to reinterpret the Supreme Court's judgment. The court also noted that the Supreme Court had explicitly ruled that the benefits of section 139(5) are not available for returns filed under section 139(4).

Conclusion:

The court dismissed the appeal, affirming that the revised return filed by the appellant under section 139(4) was invalid under section 139(5). The court upheld the Tribunal's decision, concluding that the benefits of section 139(5) do not extend to delayed returns filed under section 139(4). The substantial question of law was answered in favor of the Revenue, and the appeal was dismissed.

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