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TMI Blog1987 (10) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... hose grounds as well. 2. We have heard the learned departmental Representative and the learned counsel for the assessee. The facts are that the assessee's return of income was due to be filed on30-7-1978u/s 139(1) of the Income-tax Act, 1961. No return was filed within that time. The assessee filed a return of income on30th August, 1978. The assessee filed a revised return on17-2-1981and the ITO completed the assessment on15-2-1982. Before the AAC it was contended that the return filed on17-2-1981was not an invalid return as a revised return could not be filled in respect of a return filed u/s. 139(4) and, therefore, this return could not be taken into account and could not extend the period of limitation. The assessment should, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) and (2) can be revised and no revised return can be filed in respect of a return filed u/s. 139(5) but he contended that such a return could be revised under the provisions of section 139(4) itself and for this proposal he relied upon the ratio of O. P. Malhotra's case decided by the Delhi High Court which is the jurisdiction at High Court. 5. Before discussing the ratio laid down in the aforesaid case it is better to keep in mind the difference in the provisions of sub-sections (4) and (5). Under section 139(4)(a) an assessee can file a return only within the period prescribed in the following clause (b). That period available in the present case was two years from the end of assessment year, i.e., up to31-3-1981in the case before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as a revised return under sub-section (1) or (2) of section 139. The Tribunal held that the ITO rightly ignored the second return. The Hon'ble Delhi High Court affirmed the Tribunal's view that a return filed on 30th March, 1965 being one u/s 139(4), a revised return could not be filed u/s 139(5), and the return filed on 28th March, 1966 was invalid in law but at page 386 of the report the Hon'ble High Court observed as under : "But where a person has not filed such a return and is availing himself of provisions of sub-section (4) which enable him to file a return after a delay which might extend up to four years, it could well be that the Legislature thought that no such opportunity of revision was needed to be provided for. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-3-1981. The second return was thus a revised return within the time allowed by section 139(4) and was thus a valid return or a revised return filed under the sub-section. We have now to see what is the effect of filing a second return which revised the income already returned. Section 153 prescribes the time limit for completion of assessments and reassessments. Sub-clause (c) of section 153(1) permits an assessments to be made up to "the expiry of one year from the date of the filing of a return or a revised return under sub-section (4) or sub-section (5) of section 139". In the case before us the second return was filed on17-2-1981and the assessment that was made on15-2-1982is within a period of one year from the filing of the second re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated30th March 1965was not cancelled by the Tribunal and this was upheld by the Hon'ble High Court. We agree with the learned Departmental Representative that in fact O. P. Malhotra's case is in favour of the revenue and does not support the assessee's. The assessee perhaps relied upon this case because in the head note it is stated that a return filed u/s. 139(4) could not be revised u/s. 139(5). The head note did not mention that a return filed u/s 139 (4) could be revised u/s 139(4) itself. 10. In Bohra Film Finance's case also the assessee had filed the revised return after the expiry of the period of limitation and it was that reason that it could not extend the period of limitation. In that case the assessment year involved was 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be incongruous that an assessee may choose to file a return shortly before the period of limitation was to expire as was done in the case of O. P. Malhotra, giving the ITO no time to consider the revised return. 11. For the reasons discussed above, we are of the opinion that in the present case the revised return was filed within the time prescribed u/s 139(4)(b), it was a valid return and would extend the period of limitation for the completion of assessment in terms of section 153(1)(c) and the assessment was made by the ITO within such extended period of limitation. The assessment made by the ITO, therefore, was not invalid on that account. As already mentioned the learned AAC has not disposed of the other grounds raised in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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