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TMI Blog1978 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... in question should be treated under section 144 of the Income-tax Act, 1961 ?" The facts found or admitted in the proceedings are as follows: The assessee is an individual. The assessment year is 1960-61 and the relevant accounting year is the financial year ending on 31st March, 1960. The assessee was required to file her return of income in pursuance of a notice dated the 9th September, 1963, under s. 148 of the 1961 Act, as the assessee had not filed her return of income in the usual course under the provisions of Indian I.T. Act, 1922 (hereinafter referred to as "the 1922 Act"). The ITO had enclosed a blank return in Form No. 2 prescribed under r. 12 of the I.T. Rules, 1962 (hereinafter referred to as "the new form"). The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the ITO to have enclosed the correct form. It was submitted further that if the assessment be treated as one made under s. 144 of the Act of 1961, the assessee would lose her right to get reopened the said assessment. The Tribunal held that the fact that a wrong return form was forwarded to the assessee would not absolve her from filing her return in the correct form and also that the ITO had no legal obligation to issue any form. The Tribunal referred to the decision of the Supreme Court in Hazari Mal Kuthiala v. ITO [1961] 41 ITR 12 for the proposition as follows: "exercise of a power would be referable to a jurisdiction which conferred validity upon it and not to a jurisdiction which is nugatory." The Tribunal held as follows: "A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be held to be bad. He submitted further that s. 148 of the 1961 Act provides that the notice thereunder may contain all or any of the requirements which may be included in a notice under s. 139(2) of the 1961 Act, and the provisions of the 1961 Act, so far as may be applicable, would apply as if it was a notice issued under that sub-section. Section 139(2) requires service of a notice requiring the assessee to furnish a return of his income in the prescribed form and verified in the prescribed manner and setting forth such particulars as may be prescribed. The admitted position in the present case is that the blank return form forwarded by the ITO was not the proper form and the return was submitted by the assessee thereon. The forms are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case, it was held by the Allahabad High Court that where the original return, not having been filed in the proper form was not in accordance, with the provisions of the Act, it had to be ignored and no penalty could be imposed on the basis of such a return. Mr. Bagchi, learned advocate appearing on behalf of the revenue, submitted, firstly, that the AAC erroneously proceeded on the basis that there was initial lack of jurisdiction of the ITO to make the assessment and that he annulled the assessment under the first part of s. 251(1)(a) of the 1961 Act and did not merely set aside the ITO's order but also directed the ITO to make a reassessment. Mr. Bagchi contended that the assessment proceedings were validly initiated under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha v. ITO [1971] 79 ITR 187 (Assam) and Laxmi Industries and Cold Storage Co. (Pvt.) Ltd. v. ITO [1971] 79 ITR 248 (All). We accept the contentions of Mr. Bhattacharya and it is also the admitted position that the return should have been filed in the old form and not in the new form as enclosed. The provisions for filing the return in the proper form are statutory and mandatory in nature. No return in the proper form having been filed, the assessment could not have been made under s. 143(3) of the Act. This is also the conclusion of the Tribunal not challenged by the revenue. It is on that basis, that the Tribunal directed that the assessment should be treated as having been made under s. 144 and not s. 143(3) of the 1961 Act. In our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of which an assessment order under s. 143(3) of the Act has been made. This cannot be treated as best judgment assessment as if no return has been filed. In the present case, it is nobody's case and it has also not been found by the Tribunal that, in the assessment order, s. 143(3) has been referred to by mistake and that the ITO in fact intended to and proceeded under s. 144. In P.Balakotaiah v. Union of India, AIR 1958 SC 232, the services of the appellant were terminated by the orders of the Railway authorities under r. 3 of the Security Rules and the appellant having filed a writ petition on the ground that the rule was ultra vires, the High Court held that the order could be sustained under r. 148 of the Railway Establishment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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