TaxTMI 
TaxTMI 
1996 (4) TMI 5
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.... to file a revised return under sub-section (5) of section 139 of the Income-tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the assessments made by the Income-tax Officer for the assessment years 1964-65 and 1965-66 were within the time-limit prescribed in section 153(1)(b) of the Income-tax Act, 1961 ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the cases for the assessment years 1964-65 and 1965-66 were such as falling within clause (c) of sub-section (1) of section 271?" While question No. 1 was referred at the instance of the Revenue, questions Nos. 2 and 3 were referred at the instance of the assessee. The two assessment years concerned herein are 1964-65 and 1965-66. For the assessment year 1964-65, the assessee did not furnish a return within the period prescribed by sub-section (1) of section 139. No notice under sub-section (2) of section 139 was served upon him. The assessee submitted a return on August 13, 1964, disclosing a total income of Rs. 42,131. This return, it is not in dispute, was filed under, and taking advantage of the provision contained in, sub-sec....
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....led under section 139(4), no revised returns could have been filed by the assessee. He held that sub-section (5) of section 139 permits a revised return to be filed only where, the return is filed under sub-section (1) or sub-section (2) of section 139 but not where the return is filed under sub-section (4) of section 139. In this view of the matter, the Appellate Assistant Commissioner held that the Income-tax Officer cannot claim the benefit of the extended period provided by clause (c) of sub-section (1) of section 153. The Revenue challenged the decision of the Appellate Assistant Commissioner before the Tribunal. The Tribunal agreed with the Appellate Assistant Commissioner that no revised return can be filed by an assessee who has filed the return under section 139(4) and that, therefore, the so-called revised returns filed by the assessee were not valid in law. The Tribunal, however, allowed the appeals filed by the Revenue on the ground that the assessment orders must be held to have been made within the time prescribed by clause (b) of sub-section (1) of section 153. In other words, the Tribunal was of the opinion that since there was a prima facie case for initiating a....
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....he case of every other person, before the 30th day of June of the assessment year : (Proviso omitted as unnecessary). (2) In the case of any person who, in the Income-tax Officer's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax Officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : (Proviso omitted as unnecessary). (4)(a) Any person who has not furnished a return within the time allowed to him under sub-section (1) or sub-section (2) may before the assessment is made, furnish the return for any previous year at any time before the end of the period specified in clause (b), and the provisions of clause (iii) of the proviso to sub-section (1) shall apply in every such case. [Substituted by Finance Act No. 19 of 1968 (w.e.f. 1-4-1968)]. (b) The p....
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....ars of his income or (The word ' deliberately ' omitted by Finance Act, 1964 [(w.e.f. 1-4-1964)] furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty, . . . . (iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of the income in respect of which the particulars have been concealed or inaccurate particulars have been furnished." The first question is whether a person who files a return under section 139(4) is entitled to file a revised return before the assessment is made. We think not. The furnishing of a revised return is provided by sub-section (5) of section 139. According to this sub-section " any person having furnished a return under sub-section (1) or sub-section (2) " may furnish a revised return at any time before the assessment is made if he discovers any omission or any wrong statement in the original return. The very fact that this right is given to a person who has filed a return under sub-section (1) or sub-section (2) of section 139 means by necessary implication that such a right is denied to....
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....shok Sen. (see O. P. Malhotra v. CIT [1981] 129 ITR 379 (Delhi) ; Dr. S. B. Bhargava v. CIT [19821 136 ITR 559 (All) ; Vimalchand v. CIT [19851 155 ITR 593 (Raj) and Eapen Joseph v. CIT [1987] 168 ITR 26 (Ker)). Only the Calcutta High Court has taken the contrary view with which we are unable to agree. The understanding of clause (b) of sub-section (1) of section 153, however, appears to be a difficult one, because of the ambiguous language employed therein. It says that " in a case falling within clause (e) of sub-section (1) of section 271 ", the period for making an order of assessment is eight years. Now what do the words " in a case falling within clause (c) of sub-section (1) of section 271" mean ? Different High Courts have spoken in different voices. Broadly speaking there are two streams of thought. The first one is this : within the period of four years (or whatever the applicable period of limitation), the Income-tax Officer must either initiate proceedings under section 271(1)(c) or record his opinion that it is a case falling under section 271(1)(c) ; unless any such step is taken, it cannot be said that it is a case falling under section 271(1)(c) ; if this safegua....
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....e-tax Officer should issue a notice or pass an order or make a record that it is a case falling within section 271(1)(c) and that the validity of the assessment order should be judged with reference to the date on which the assessment order is made. We find that both the streams of thought aforesaid are equally attractive. Each has an appeal of its own. We are, however, relieved of making a choice in the matter because of the decision of this court in CIT v. Suraj Pal Singh [1991] 188 ITR 297. It was an appeal against the decision of the Allahabad High Court in CIT v. Surajpal Singh [1977] 108 ITR 746. The Allahabad High Court discussed this problem at length (at pages 72 and 753), but ultimately did not express any final opinion for the reason that it was not necessary to do so in view of the facts of and findings recorded in that case. We do not think it necessary to set out the entire reasoning of the High Court. It is sufficient to state that it espouses the first stream of thought mentioned above. On appeal, this court purported to affirm the said line of thought which is evident from the following observations in the judgment, which, in effect, are practically the whole of....