TaxTMI 
TaxTMI 
1978 (9) TMI 40
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..... 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 submitted her return in the form as enclosed on which the ITO completed the assessment under s. 143(3) of the 1961 Act. The assessee filed an appeal against the order of assessment and contended before the AAC, inter alia, that her return having been filed in the new form, the entire proceedings were illegal and ab initio void because the assessee was required in law to file her return of income in the form as prescribed in r. 19 of the Indian I.T. Rules, 1922. The AAC held that the impugned assessment under s. 143(3) on the basis of a return not filed in the proper form was invalid and the assessment made thereon void ab initio. Accordingly, he made the following order: "In the result the appeal is allowed and the assessment for 1960-61 is cancelled. The Income-tax Officer may proceed on the basis of the fact that the appellant did not file ....
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....48 of the 1961 Act was a valid notice. In this view of the matter, we hold that the AAC was not justified in cancelling the assessment made by the ITO. We accordingly set aside the order of the AAC and restore that of the ITO with the modification stated." Mr. Sanjoy Bhattacharya, learned advocate appearing on behalf of the assessee, has submitted that the conclusion of the Tribunal was erroneous. He submitted that the return filed not being in the prescribed form, the assessment must 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 submitte....
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....nd that the assessment was void on that score. Accordingly, Mr. Bagchi submitted that the AAC went wrong in annulling the proceeding. In support of his contentions Mr. Bagchi cited Sant Baba Mohan Singh v. CIT [1973] 90 ITR 197 (All) and R. A. Boga v. AAC [1977] 110 ITR 1 (Punj) [FB]. Mr. Bagchi next submitted that the order of assessment in the present case cannot be held to be invalid because a wrong section had been referred to therein. Mr. Bagchi, however, did not dispute that the return in the instant case had to be submitted in the old form and not in the form as enclosed. He, however, contended that an assessment made on the basis of a return in the wrong form cannot be held to be invalid because the same could have been made under s. 144 as in the case of absence of any return. The ITO would have jurisdiction in the facts and circumstances to make an assessment under the said s. 144. Merely because the ITO has mentioned that the assessment was made under s. 143(3), it would not make the same invalid. Mr. Bagchi also cited Hazari Mal's case [1961] 41 ITR 12 (SC) relied on by the Tribunal and also the decisions reported respectively in CIT v. Gangaram Kanayalal & Co. [1940....
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....eturn, though an invalid return, on the 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 Code. It was contended before the Supreme Court that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule and that the validity of an order should be judged on a consideration of its substance and not its form. The Supreme Court observed that it had not bee....