9911796707
TMI Blog1988 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... sed return. The assessment order was passed on November 23, 1981, i.e., within one year from March 11, 1981, the date on which the revised return was filed. The case which was set up by the assessee was that since the return under section 139(4) of the Act had been initially filed on March 22, 1979, the order of assessment could have been passed only within one year from that date, namely, up to March 22, 1980, in view of section 153(1)(c) of the Act and the same not having been passed by that date, but having been passed only on November 23, 1981, the assessment was barred by time. The case of the Department, on the other hand, was that since the revised return had been filed by the assessee on March 11, 1981, the starting point of limitation of one year would be March 11, 1981, in view of section 153(1)(c) of the Act and the order of assessment, as passed on November 23, 1981, was thus within limitation. The plea raised by the Department was ultimately repelled by the Tribunal and the plea of the assessee that the assessment was barred by time, was accepted. However, at the instance of the Department, the Tribunal referred the aforesaid question to this court for its opinion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is correct and complete. The effective return for purposes of assessment is thus the return which is ultimately filed by an assessee on the basis of which he wants his income to be assessed. Learned counsel for the assessee, to support his contention to the contrary, urged that, as penalty proceedings under section 28(1)(c) of the 1922 Act or under section 271(l)(c) of the 1961 Act are permissible if the assessee conceals the particulars of his income or deliberately furnishes inaccurate particulars of such income in the original return even though he may subsequently file a correct and complete revised return, it must be held that the original return is also the effective return. I am not inclined to accept the contention. A person is penalised for the wrong act that he does and the offence becomes complete as soon as the act is done. It cannot be cured by subsequent mending. It is on this principle that an assessee can be penalised for concealing the particulars of his income or deliberately furnishing inaccurate particulars of such income. 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 omiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the view taken by the Tribunal that sub-section (5) of section I 39 was confined to a return filed under sub-sections (1) and (2), and could not be applied to a case where a return had been filed under sub-section (4) thereof, was apparently correct in view of the plain language of section 139(5) inasmuch as sub-section (4) is conspicuous by its absence in sub-section (5). Reliance in support of this submission has been placed on the decision of a Division Bench of the Allahabad High Court in Dr. S. B. Bhargava v. CIT [1982] 136 ITR 559, where relying, inter alia, on a decision of the Delhi High Court in 0. P. Malhotra v. CIT [981] 129 ITR 379, it was held that a return under sub-section (4) stands in category different from that provided in sub-section (1) or (2) of section 139 and such a return cannot be revised under sub-section (5). Consequently, a revised return, being an invalid return, cannot extend the period of limitation for completing the assessment. Reliance was also placed by learned counsel for the assessee on decision of a Division Bench of the Rajasthan High Court in Vimalchand v. CIT [1985] 155 ITR 593, where it was held that the extended time limit of one ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson has not filed such a return and is availing himself of the 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 this context, it should be remembered that such an assessee can, within the period of four years provided for in section 139(4) (which has been reduced subsequently to two years conformably to amendments in section 153 reducing the time-limit for completion of assessments), file as many returns as he wants. In view of this also, there was no necessity to provide a further opportunity to such an assessee to revise a return filed already after considerable delay by taking advantage of the fact that the assessment has not been completed by then. On these considerations, we are not impressed by the argument of Shri Verma that it would not be logical to hold that a person who has originally filed a return could revise it as many times as he likes before the assessment is made but that such an opportunity would not be available to a person who files his first return only under section 139(4). " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two views. One view is that there can be successive returns filed under section 139(4) but subject to the limit prescribed under section 153 for completing the assessment. This view is fully supported by the observations of the Delhi High Court in Malhotra's case [1981] 129 ITR 379. Now, take for instance this very case. The assessee could file another return under section 139(4) as long as the period for completing the assessment under section 153 is not completed. The other view may be that so far as the return under section 139(4) is concerned, there can be no subsequent return under section 139(4). To hold that there should not be any subsequent return under section 139(4) even within the period of limitation is not warranted by the scheme of the Act. If such a view is taken, it will lead to practical difficulties. If an assessee who has filed a return under section 139(4) finds an obvious mistake or omission which is not intended, he cannot correct it by filing another return under section 139(4) within the period prescribed. We do not think that the Legislature intended such a situation to arise. It is, therefore, proper to hold that successive returns under section 139(4) ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this aspect of the matter. To say that the Legislature became oblivious of this aspect of the matter with regard to a person who has filed return voluntarily under sub-section (4) of section 139 would be imputing unreasonableness to the Legislature. We find nothing in section 139 which may justify such imputation. Since a return under sub-section (4) of section 139 of the Act is a voluntary return, the view that within the period of limitation prescribed for the purpose, successive returns can be filed, seems to be the correct view inasmuch as it takes notice of the aforesaid aspect of the matter. Keeping in view the circumstances in which a voluntary return is filed under section 139(4) of the Act, it seems to us to be implicit in the very nature of things that subsequent return or returns under section 139(4) are permissible provided they are filed within the period of limitation. Filing of a subsequent return or a revised return, as the case may be, stands on a footing different from a case where only an application is made for correction in the original return. In the latter case, the original return continues to be the valid return and is to be read subject to the corrections ..... X X X X Extracts X X X X X X X X Extracts X X X X
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