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TMI Blog1984 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a notice to the assessee on 7-2-1983 under section 263(1). The learned counsel for the assessee attended and filed written submissions on 5-3-1983. The assessee's counsel made the following contentions : (i) That the failure to sign the return can be treated only as an omission which can be rectified under section 292B of the Act. (ii) The very fact that notice under section 143(2) of the Act was issued indicated that the return was treated as valid by the ITO. On consideration of the contentions made by the assessee's counsel, the Commissioner held that the order passed by the ITO is erroneous and prejudicial to the interests of the revenue for the following reasons : (i) Only omissions can be rectified under section 292B but an invalid return cannot be validated. The omission to sign the verification will render the return invalid and it is not an omission which can be rectified. (ii) The contention that the return was treated as valid by the ITO will not help the assessee as the ITO has no power to do so. Regarding the reliance placed by the assessee on the decision in All India Reporter Ltd. v. Ramchandra Dhondo Dalar AIR 1961 Bom. 292, the Commissioner observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to him, section 292B inserted by the Taxation Laws (Amendment) Act, 1975, with effect from 1-10-1975, clearly lays down that no return of income, etc., shall be deemed to be invalid by reason of any mistake, defect or omission in such return, if in substance and effect the same is in conformity with or according to the intent and purpose of this Act. The learned counsel contended that when the statements of total income including the trading account, profit and loss account, balance sheet, partners' accounts, allocation of income between the partners, etc., which were filed along with the return and which formed part and parcel of the return were all signed by the partners and similarly Form No. 12 claiming continuation of registration filed with the return and which also formed part and parcel of the return was also signed by all the partners and the returns of the partners which were filed on the basis of the return of the firm on the same day were also signed and verified by the partners, it is purely a mistake on the part of the assessee in not signing the return and, therefore, the defect is curable under section 292B. He relied upon the decision of the Bombay High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statutory one. Since the ITO has never intimated to the assessee the defect in the return, namely, non-signing of the return, by the assessee, the lapse on the part of the ITO, cannot now be used against the assessee. Secondly, he contended that the ITO having proceeded with the assessment on the basis of the return filed by the assessee along with statement, etc., and having treated the return as valid, the higher officer, namely, the Commissioner of the same department cannot now say that the return filed by the assessee is invalid as the same has not been signed by the assessee. He relied upon the decision of the Punjab High Court in the case of Bibi Gurdarshan Kaur v. CIT [1964] 51 ITR 1, wherein their Lordships have held that as the ITO had not only entertained the return but acted on it by issuing a notice under section 23(2) of the Indian Income-tax Act, 1922 (' the 1922 Act ') and had not at that stage raised an objection on the ground that the return was invalid, and he could have by resort to section 23(3) removed any lacuna in return, the return filed by the assessee on 3-9-1951, was a valid return. That return still remained undisposed of and, therefore, the reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rescue of the assessee as the assessee has failed to sign the return of income. He relied upon the decision of the Calcutta High Court in the case of CIT v. Garia Industries (P.) Ltd. [1982] 31 CTR (Cal.) 177 in support of his plea that sanctity is to be attached not to the statement, but to the return. He further contended that non-signing of the return is not a mistake curable under section 292B. In support of the aforesaid proposition he relied upon the decision of the Allahabad High Court in the case of CIT v. Smt. Phoolmati Devi [1983] 144 ITR 954. The learned departmental representative vehemently contended before us that in all the cases relied upon by the assessee's counsel in none of them the return is unsigned and, therefore, the decisions relied upon by the learned counsel for the assessee are distinguishable on facts. 6. The learned departmental representative then contended before us that the decisions relied upon by the assessee are the decisions rendered in civil cases under the Code of Civil Procedure. He, therefore, contended that when there is a conflict between a general and a special provision, the latter shall prevail. For the aforesaid proposition he relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that was referred to their Lordships was whether the return made under section 22(2) of the 1922 Act on the form supplied to the assessee by the ITO with the omission of signatures is an incomplete return contemplated by section 23(2) and the assessment in such case could not be made without issue of a notice under this section, viz., 23(2). In answer to the aforesaid question their Lordships have held that when a return is not signed and verified, there is no valid return at all and the ITO would be justified in making an assessment to the best judgment under section 23(4). Such a return is not incomplete return within the meaning of section 23(2) but no return at all. The aforesaid decision was rendered on 27-10-1933 since then much water has flown. We are now deciding the issue in the year under appeal 1978-79. At the time of passing the judgment by their Lordships of the Allahabad High Court, there is no provision in pari materia to section 292B and, therefore, their Lordships had no occasion to consider the question whether such a defect is a curable defect or not. The trend of the decisions though they are rendered under the Code of Civil Procedure, several High Courts h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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