9911796707
TMI Blog1982 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 73. The assessee did not file any return within that date. A notice under s. 139(2) was served on the assessee on 29th Aug, 1975 calling upon him to file the return by 28th Sep, 1975. The assessee did not file any return within that date. However, the assessee filed a return voluntarily on 7th Feb, 1978 showing a loss of Rs. 68,830. The assessee was a partner in a firm and had his own business of Intending Agents of imported goods on behalf of his constituents. The loss returned at Rs. 68,830 on 7th Feb, 1978 was the share of loss in the registered firm only. A note was given in the return to the effect that the books of accounts of the personal business were seized under s. 132(1) and that steps to take copies therefrom were being taken an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 139(1) or under s. 139(2). Thus, the stand of the assessee was that the first return filed by him on 7th Feb, 1978 was not a return under s. 139(1), or under s. 139(2), and so it was not capable of being revised under s. 139(5). Consequently, the assessee urged, the original period of limitation to complete the assessment did not get extended by s. 153(1) (c) r/w Explanation 1(iv) to s. 153 (3). Thus, according to the assessee, the period for completing the assessment expired on 31st Mar, 1978, and since the assessment was made on 14th Jan, 1980, it was barred by limitation and so bad in law. The CIT(A) considered the contentions, but rejected the same. According to the CIT(A), the return filed by the assessee, for the first time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is entitled to succeed on this ground. He relied on the decision of the Chandigarh Bench of the Tribunal in the case of Balwnat Singh Arora, published at page 17 of Feb, 1981 issue of Current Tax Reporter [(1981) 20 CTR (Trib) 17]. He also referred to the decision in the case of Zulekha Begum vs. CIT (1981) 129 ITR 560 (Cal) and stated that though the said case was decided against the assessee, yet the principle decided therein helps the case of the assessee before us. 5. Shri G.S. Bhargava, ld. Rep. for the department, on the other hand, supported the order of the CIT (Appeals). He pointed out that the first return filed on 7th Feb, 1978 was quite valid. It was a return under s. 139(2) because it could not be a return under s. 139(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied. The ITO has stated that proceedings under s. 271(1) (c) should be initiated only in his assessment order dt. 14th Jan, 1980. By this time, according to him, the assessment has already become barred by limitation. His point was that the ITO must record before the expiry of the period of limitation that the provisions of s. 271(1) (c) applied in the facts unless the ITO makes such a recording, the period of limitation is not extended by eight years as envisaged under s. 153(1) (b). 7. We have considered the contentions of both the parties as well as the facts on record. The question that is to be decided in this appeal is whether the first return filed by the assessee on 7th Feb, 1978 can be regarded as one under s. 139(1) or 139(2). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if so, why. The Supreme Court held as follows: "Thus, a return submitted at anytime before the assessment is made is a valid return. In considering whether a return made is within time, sub-s. (1) of s. 22 must be read alongwith sub-s. (3) of that section. A return whether it is a return of income of profits or gains or of loss, must be considered as having been made within the time prescribed if it is made within the time specified in s. 22(3). In other words, if s. 22(3) is complied with, s. 22(1) also must be held to have been complied with". From the above, it is clear that considering the scheme of the Act, the Supreme Court had laid down a principle that if a return has been filed before the assessment is made, then it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently was invalid." We feel fortified in our conclusion by the above decision, which appears to us to be a direct authority on the point raised in this appeal. 10. Once it is held that the first return filed on 7th Feb, 1978 was a valid return in the sense that it could be regarded as only a return under s. 139(1) or 139(2) r/w s. 139(4), then it clearly follows that the said return could be revised under s. 139(5). In fact, the assessee himself has treated the first return to be a valid return which is revisable under s. 139(5), and has actually revised the first return by filing the revised return on 7th Sep, 1978. The ITO has accepted that return and proceeded to complete the assessment. Once the second return is held to be a revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
