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TMI Blog1994 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of the said provision and that the Income-tax Officer is bound to consider these returns in framing the assessment ?" The short facts necessary for answering the above question are as follows : The assessee in the instant case did not file a return under section 139(1) of the Act for the accounting year 1977-78. He was issued notice under section 139(2) of the Act dated January 10, 1979, calling upon him to file the return. That notice was served on him on January 25, 1979. He did not comply with the notice by filing any return. Instead, he filed a return on July 17, 1980. Thereafter, within the period prescribed by section 139(4)(b)(iii), he filed another return on November 17, 1980. The Income-tax Officer refused to consider the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of the second return.", and rejected the contention of the assessee that the Commissioner of Income-tax (Appeals) could not have restored the matter to the Income tax Officer for passing an order of assessment on the basis of the second return. The Revenue filed R. A. No. 427/(Coch) of 1984 praying for referring the following question to this court: "Whether, on the facts and in the circumstances of the case, the Tribunal is right in confirming the order of the learned Commissioner of Income-tax (Appeals) who had set aside the order of assessment completed on the basis of the 'first return' ?" On the basis of the said application, the Tribunal referred the question quoted at the beginning of this judgment to this court unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 987] 168 ITR 26, to which one of us (Sreedharan J.) was a party, took the view that any return filed subsequent to the first one, which was filed under section 139(4), had no legal consequence. In Eapen Joseph v. CIT [1987] 168 ITR 26, it was observed (at page 31) : "Firstly, section 139(5) of the Act permits a later or revised return to be filed only where the (original) return was filed under section 139(1) or (2) of the Act. Filing of a revised return is not contemplated under section 139(5) of the Act in cases governed by section 139(4) of the Act. Any return filed subsequent to the filing of an original return is only revised return. If the filing of such a revised return is not contemplated or permitted in the return filed under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afraid, is not proper. The courts are not to venture to adopt legislative process. It is to under stand the law as enacted by the Legislature. When the Legislature under two different situations provide two different modes leading to two different consequences, those modes will have to be given effect to. According to the Division Bench of the Madhya Pradesh High Court, a person who has been compelled to file a return by a notice under sub-section (2) of section 139 of the Act can file a revised return under sub-section(5) thereof, if he discovers any omission or any wrong statement therein, but the same benefit is to be denied to a person who filed a return under section 139(4) voluntarily. This is held to be an anomalous situation. It wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts will be rewriting the statute, which is not within the province of the courts. In the instant case, the assessee was a regular assessee to incometax. He ought to have filed his return under section 139(1) which he did not. Notice under section 139(2) was served on him. That was also not complied with. Only thereafter, he came forward with a return under section 139(4). Such an assessee is not entitled to have the right to furnish a revised return as contemplated by section 139(5) of the Act. We do not find any reason to differ from the law stated by this court in Eapen Joseph v. CIT [1987] 168 ITR 26. Further, we are bound by the said decision. Consequently, we are of the view that the Tribunal went wrong in holding that the second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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