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TMI Blog1982 (9) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, on the assessee. A return was filed by the assessee on 8-8-1979 returning a loss of Rs. 4,94,379. The ITO went into the details of the case and issued a draft order computing a loss of Rs. 1,13,610 and since the addition involved exceeded more than a lakh of rupees, the IAC's order under section 144B of the Act was obtained. The IAC directed the ITO to drop the proceedings started under section 148 in the absence of any finding of escapement of income. The ITO passed an order on 8-7-1980 which read as under : " The proceeding initiated by issue of the notice under section 148 of the IT Act, 1961 on 23-7-1979, are hereby dropped as the income chargeable to tax has not escaped the assessment. Issue notice of demand accordingly. Pune Sd/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 may please be dropped. 2. That the learned ITO is not justified in taking away the rights given to appellant under section 139(4). 3. That the learned ITO is not justified in dropping the action on the return submitted by the appellant under section 139(4). Under the facts and circumstances of the case, appellant pays, that the return submitted by him may please be treated as return submitted by him under section 139(4) and prays that, the loss as declared in the return may please be determined and be allowed to be carried forward to set-off against future income. 4. The appellant prays to leave, add, alter or amend the grounds of appeal as and when occasion demands. 5. The appellant prays to produce such other necessary evidence as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made on him. Reliance is placed on the decisions in Anglo-French Textile Co. Ltd. v. CIT [1953] 23 ITR 82 (SC) and Kevaldas Ranchhodas v. CIT [1968] ITR 842 (Bom.). Additional grounds of appeal were also filed claiming that even if the returns were treated as valid under section 139(4), since the ITO had not passed any consequential order thereon under section 143(3) of the Act, computing the loss, the assessee had no right of appeal to the Commissioner (Appeals). As a natural corollary, it is claimed that the Commissioner (Appeals) could not adjudicate on the question of an order passed by the ITO under section 143(3) on the basis of the assessee's alleged return under section 139(4). After hearing the objections of the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the independent provisions of law. In a suitable case where this independent provision does not conflict with the notice served by the ITO, the assessee can certainly file his return of income at any time within the time provided and if the income is negative being loss, the assessee could have the benefit of carry forward of the loss. It was also claimed that the return filed on 8-8-1979 was a return under section 139(4) and not a return in response to notice under section 148. Mere issuance of a notice under section 148 shall not deprive the assessee of his right to file a revised return under section 139(4). Reference is also made to two decisions of the Tribunal in IT Appeal No. 74 (PN) of 1980 and certain other orders of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that a return is filed in response to one particular section which is voluntary and not another which is obligatory and actually a validly filed return should be considered for one purpose but ignored for any other purpose. 10. The stand taken by the learned counsel for the assessee, to say the least is self-contradictory. This is clear from the grounds of appeal raised by him before the Commissioner (Appeals). The assessee has challenged the notice under section 148 and also action taken under section 147 in the grounds of appeal presented before the Commissioner (Appeals) against the order of the ITO dropping action initiated under section 148 dated 8-7-1980. The grounds of appeal quoted at length above before the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 139(4). The basic contention of the assessee, therefore, on this point has to be rejected. 11. The return filed by the assessee if it is treated as a return under section 139(4), would lead to the inevitable inference that the assessee has not complied with the notice under section 148. An assessee who claims relief in an appeal can certainly not be heard to say that he has deliberately flouted his statutory obligations, but cleverly sought to claim his statutory rights arising under the same statute. The return filed on 8-8-1979 has therefore to be presumed clearly as being filed in response to a notice under section 148 and if this be so, the Commissioner (Appeals) could certainly not have given a direction to the ITO to compute the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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