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TMI Blog1983 (4) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-10-1977 Return filed u/s 139(2) 14-6-1978 A revised return filed 22-3-1980 Draft order u/s 144B sent to the assessee by the ITO 31-3-1980 Last date for completion of assessment but for s. 144B proceedings 5-4-1980 Objections filed 7-4-1980 Objections forwarded to the IAC 11-7-1980 Further objections filed and forwarded to the IAC 7-8-1980 Revised return filed. 4. The return filed on 31st Oct, 1977 had declared a net loss of Rs. 18,80,620. This was revised as net loss of Rs. 20,51,430 by the revised return filed on 14th June,1978. The enhanced loss was on account of a claim for weighted deduction of Rs. 1,70,804 u/s 35B. In the further o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me up in appeal. 7. The arguments of the ld. Departmental representative were to the following effect: Only one revised return could be filed u/s 139(5). No revised return could be accepted after the draft assessment order has been forwarded by the ITO to the IAC u/s 144B(2). It is also not permissible for the ITO to forward more than one draft order. The proceedings before the IAC are quite different from the assessment proceedings. The assessment proceedings cannot be said to be pending after the forwarding of the draft order to the IAC. The extended period available u/s 14B r/w s. 153 is available only for completing the assessment and it cannot be used by the assessee for filing a revised return. 8. On the other hand, the argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sudhir Sareen vs. ITO (1981) 128 ITR 445 (Del) that the ITO cannot forward more than one draft order u/s 144B. In this case, the question whether the earlier draft order could be recalled and whether a fresh dreaft order could be forwarded when the assessee has filed a revised return was not considered by High Court. As rightly pointed out by the ld. counsel for the assessee, this ruling is only an authority for the position that a second draft order cannot be forwarded when nothing intervenes. The next contention of the ld. Departmental representative was that the proceedings before the IAC are different from the one before the ITO and that the assessment proceedings cannot be said to be pending when the ITO has forwarded the draft ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which restricts the time for filing the revised return up to the commencement of the proceedings u/s 144B. This is sufficient to reject the contention of the department. It is true that it is settled law that a return or revised return which is filed beyond the period of limitation prescribed for making the assessment is non est and cannot be acted upon. But the test is whether the return is filed at a time when an assessment could have been lawfully made. In the present case, the assessment could have been made and was actually made only after completing the procedure prescribed u/s 144B and the revised return was filed before the making of the assessment. It will not be correct to treat the extra time available to the ITO to complete th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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