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TMI Blog1984 (6) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... e return filed on 25th Feb., 1982 as a revised return. The ITO was of the opinion that the original return was not filed by the assessee either under s. 139(1) or under s. 139(2) and, therefore, the return filed by the assessee cannot be taken as a return under s. 139(5) of the Act, 2. The assessee took the matter before the CIT(A) and the CIT(A) after quoting the provisions of s. 139(5) dealt with the facts and law and ultimately rejected the argument of the assessee in the following words: "The appellant's accounting year ended on 31st Dec., 1978 and, therefore, the return for this year was due to be filed, in terms of s. 139(1), on or before 30th June, 1979. The return filed, on 5th March, 1981, could, therefore, not be said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) on this issue and further supplemented his argument by placing reliance in O.P. Malhotra vs. CIT (1981) 129 ITR 979 (Del). 5. The return was filed by the legal heir of the assessee after the death of Sri C.R. Das on 23rd Jan., 1979. The return was filed on 5th March, 1981. Subsequently, it was found that there were certain mistakes and the assessee had not disclosed properly the income from business and house property and consequently a revised return was filed on 25th Feb., 1982. The assessment was completed by the ITO though on 29th March, 1982 but the assessment was completed on the basis of the return filed by the assessee on 5th March, 1981. 6. The return is filed by an assessee under s. 139 of the Act. The return can be file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffective return for the 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. Sub-s. (5) is a part of s. 139. The statute itself provides for the filing of a revised return, Section 143 does not specifically deal with the return filed either under sub-s. (1) or sub-s. (2) or sub-s. (4) of s. 139. It deals generally with the return fled under s. 139. It is true that sub-s. (5) specifically mentions sub-s. (1) or sub-s. (2) but does not mention the case of a return filed under sub-s. (4) of s. 139. However, the true purport of a return fled under sub-s. (5) is that it substitutes the original return filed and sub-s. (4) specifically gives the assessee a rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim must have been considered by the ITO and thereby the assessee would have got a right to go in further appeal. If the claim of the assessee can be considered on the strength of a letter, there is no reason that the claim of the assessee cannot be considered when the same has been filed through a return and before the assessment is made. Under the above circumstances, the return filed by the assessee on 25th Feb., 1982 was a revised return as well as it was also a claim before the ITO and, therefore, the ITO should have acted upon the return of the assessee dt. 25th Feb., 1982. Consequently, the plea of the assessee is accepted and the ITO is directed to Act upon the return of the assessee dt. 25th Feb., 1982. 8. In the result, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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