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TMI Blog1991 (3) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... ght that a revised return filed after the completion of assessment was not to be taken cognizance of. He, therefore, ignored the revised return and proceeded to compute the income without that. Another reason that prevailed with the ITO was that even the original return was filed 4 days after the due date. 3. For the assessment year 1981-82, the original return was filed on16-3-1983. The assessment was completed here also under section 144. On appeal, the CIT set aside this assessment directing the ITO to make a fresh assessment. During the fresh assessment proceedings, the assessee filed a revised return on3rd February, 1987again making a claim for the set off of loss from Mushroom business. The ITO ignored the revised return as invalid on the ground that the original return was filed under section 139(4) and such a return could not be revised. Placing reliance upon the decision of the Allahabad High Court in the case of Dr. S.B. Bhargava v. CIT [1982] 136 ITR 559 for the view that a return filed under section 139(4) could not be revised, the ITO ignored finally the revised return and computed the income and made the assessment. 4. Against these assessments, appeals were filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subhash Kumar, however, contested these propositions very strongly. He submitted that making of a claim or withdrawing of a claim is a process which was to be legalised under the sanction of the Law and that process of legalisation is possible only by filing a revised return within the meaning of law and if the law does not permit an assessee to seek the aid of the filing of a revised return to advance a claim it meant that the Legislature never permitted such kind of claims to be entertained and, therefore, the rejection by the Department of the revised return which was admittedly not in accordance with Law, should not be found fault with. Once the revised return was held to be invalid, the claim made therein would also fall flat with it, it is not possible to ignore the revised return yet again take cognizance of the claim made in that very ignored return. This will be nothing short of contradiction. If a return is to be ignored, it is ignored for all purposes. Nothing, therefore, survives in the revised return for being taken cognizance of. The argument of the assessee that when a claim could be made for the first time even before the Tribunal without raising such a claim befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d return filed, the revised return could be processed by the ITO as a valid return. Here we are not deliberately referring to the facts that led to the filing of the revised return but the argument taken up by the assessee before the High Court was that the subsequent revised return was a nullity because the original return was filed under section 139(4) of the IT Act, 1961 and the assessee not having filed any return either under section 139(1) or 139(2) the revised return could not have been filed under section 139(5) at all. Section 139(5) permits filing of a revised return only where a person had filed a return either under sub-section (1) or sub-section (2) of section 139 but not under section 139(4). It was dealing with this argument and after making a detailed reference to a decision of the Allahabad High Court in the case of Dhampur Sugar Mills Ltd. v. CIT [1973] 90 ITR 236, that the Calcutta High Court held as above that if an assessee after having filed return under section 139(4), files another return subsequently, it was to be assumed that he had given a go-by to the return filed previously and that so far as he was concerned, the return filed subsequently was the corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated to be a return under section 139(5) and the Delhi High Court was categorically stating that the return having been filed once under section 139(4) that return could not be revised under section 139(5), because section 139(5) does not refer to returns filed under section 139(4). It is also very pertinent to note that in the Calcutta High Court decision, there was a reference made to the Allahabad High Court decision in Dhampur Sugar Mills Ltd.'s case in which case an argument similar to the one taken before us by Shri C.S. Agarwal was taken but was repelled by the High Court with the following observations : " But, when an assessment has to be made the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return. The earlier return after a revised return has been filed, cannot form the basis of assessment although it may be used to indicate the conduct of the assessee. Hence, for the purpose of assessment of income, the effective return must be the revised return filed by the assessee ultimately. There is a distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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