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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • — Mr. M.L Verma, Advocate.
  • — Mr. P.N Misra, Advocate.
Judges
  • Ranganathan
Acts
  • Sub-section (3) of Section 139 corresponds to Section 22(2-A) of the 1922 Act, Sub-section (4) and (5) of Section 139 corresponds to Section 22(3) of the 1922 Act. Sub-section (4)
  • sub-section (1) or (2) of Section 139 of the 1961 Act.
  • provisions of Section 139(4) of the 1961 Act.10.
  • sub-section (1) and sub-section (3) of Section 22
  • Section 143(3) of the Income Tax Act, 1961
  • Section 139(4) of the Income Tax Act, 1961
  • provisions of the 1922 Act and 1961 Act
  • Section 139(1) or 139 (2) or 22(1) or 22(2)
  • Section 297(2)(b) of the new Act of 1961,
  • sub-section (10 or sub-section (2).13.
  • Section 297(2)(b) of the 1961 Act
  • sub-section (1). Sub-section 22(3)
  • provisions of sub-section (4).12.
  • Section 139(4) of the 1961 Act.
  • Section 22(1) of the 1922 Act,
  • sub-section (1) of Section 139
  • Section 22(3) of the 1922 Act.
  • provisions of sub-section (5)
  • sub-section (1) of Section 22
  • provisions of sub-section (4)
  • Section 34 of the 1922 Act),
  • Indian Income Tax Act, 1922
  • provision to Section 22(1).
  • Section 22(1)/139(1).15.
  • sub-section (1) or (2).
  • Section 22(3)/139(4)
  • Section 139(4).14.
  • sub-section (1), (2)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • — Mr. M.L Verma, Advocate.
  • — Mr. P.N Misra, Advocate.
Judges
  • Ranganathan
Acts
  • Sub-section (3) of Section 139 corresponds to Section 22(2-A) of the 1922 Act, Sub-section (4) and (5) of Section 139 corresponds to Section 22(3) of the 1922 Act. Sub-section (4)
  • sub-section (1) or (2) of Section 139 of the 1961 Act.
  • provisions of Section 139(4) of the 1961 Act.10.
  • sub-section (1) and sub-section (3) of Section 22
  • Section 143(3) of the Income Tax Act, 1961
  • Section 139(4) of the Income Tax Act, 1961
  • provisions of the 1922 Act and 1961 Act
  • Section 139(1) or 139 (2) or 22(1) or 22(2)
  • Section 297(2)(b) of the new Act of 1961,
  • sub-section (10 or sub-section (2).13.
  • Section 297(2)(b) of the 1961 Act
  • sub-section (1). Sub-section 22(3)
  • provisions of sub-section (4).12.
  • Section 139(4) of the 1961 Act.
  • Section 22(1) of the 1922 Act,
  • sub-section (1) of Section 139
  • Section 22(3) of the 1922 Act.
  • provisions of sub-section (5)
  • sub-section (1) of Section 22
  • provisions of sub-section (4)
  • Section 34 of the 1922 Act),
  • Indian Income Tax Act, 1922
  • provision to Section 22(1).
  • Section 22(1)/139(1).15.
  • sub-section (1) or (2).
  • Section 22(3)/139(4)
  • Section 139(4).14.
  • sub-section (1), (2)
See more information ...
Smart Summary

Factual and Procedural Background

This is an income-tax reference for the assessment year 1960-61 (previous year ended March 31, 1960). The assessee, Shri O.P. Malhotra, initially filed a return on March 31, 1965 showing income of Rs. 1,720. On March 28, 1966 he filed a revised return declaring an income of Rs. 4,295. The Income Tax Officer (ITO) completed assessment on March 29 (year not explicitly re-stated but in context 1966) under Section 143(3) of the Income Tax Act, 1961 on a total income of Rs. 20,000, having ignored the revised return of March 28, 1966.

The ITO's view was that the revised return of March 28, 1966 was invalid because Section 139(5) of the 1961 Act permits a revised return only where the original return had been furnished under sub-section (1) or (2) of Section 139, whereas the assessee's earlier return (dated March 30, 1965) had been treated as filed under Section 139(4).

The assessee appealed to the Appellate Assistant Commissioner (AAC). The AAC concluded that the procedure should be governed by the Indian Income Tax Act, 1922 for that assessment year and held that the revised return was valid under Section 22(3) of the 1922 Act; accordingly he set aside the assessment and directed the ITO to take the revised return into account and re-examine the case after giving the assessee an opportunity.

The assessee then appealed to the Tribunal. The Tribunal held that Section 297(2)(b) of the 1961 Act required the assessment to be conducted under the 1961 Act's procedure because the return was filed after commencement of the 1961 Act. The Tribunal treated the March 30, 1965 return as a valid return under Section 139(4) and held that the March 28, 1966 return could not be treated as a revised return under Section 139(5) (since the earlier return was not furnished under sub-section (1) or (2)) nor as a voluntary return under Section 139(4) (because it was filed after four years from the end of the assessment year). The Tribunal concluded the ITO acted properly in ignoring the second return and therefore did not cancel the assessment; it dismissed the assessee's appeal.

The Tribunal referred to the High Court the specific question whether it was justified in law in not cancelling the order of assessment when the ITO processed the March 30, 1965 return by ignoring the March 28, 1966 return.

Legal Issues Presented

  1. Whether, on the facts and circumstances of the case, the Tribunal was justified in law in not cancelling the order of assessment passed by the Income-Tax Officer when he processed the return dated March 30, 1965 by ignoring the return dated March 28, 1966 filed by the assessee.
  2. Which statutory regime governs the validity of the returns filed after commencement of the 1961 Act for assessment years prior to 1961 — i.e., whether the procedure is governed by the Indian Income Tax Act, 1922 or by the Income Tax Act, 1961 (relevant provision: Section 297(2)(b) of the 1961 Act).
  3. Whether a return filed under Section 139(4) of the 1961 Act can be treated as a return "furnished under sub-section (1) or (2)" for the purposes of Section 139(5) (i.e., whether a voluntary return under s.139(4) can be subsequently revised under s.139(5)).

Arguments of the Parties

Appellant's (Assessee) Arguments — Mr. M.L. Verma

  • The assesse's counsel conceded that the March 30, 1965 return could be treated as a voluntary return under Section 139(4) but argued that the subsequent return dated March 28, 1966 should be allowed as a revised return under Section 139(5). The policy and textual construction, he contended, supported treating a return filed voluntarily as a return within the meaning of sub-section (1) (i.e., equating s.139(4) with s.139(1) for purposes of revision).
  • Reliance was placed on the Supreme Court decision in C.I.T. v. Kulu Valley Transport Co. (1970-77 I.T.R. 518 (S.C.)), which, under the 1922 Act, had held (in context of s.22(2-a) and s.22(3)) that returns filed before assessment could be treated as within time and could attract substantive rights (here used to argue that the principle should carry over to the 1961 Act).
  • It was also argued that Section 139(4) should be treated as in the nature of a proviso to Section 139(1) so that subsection (5) (right to revise) should apply; reference was made to a Central Board of Direct Taxes circular supporting a similar view.
  • Separately, the assessee argued that if the March 28, 1966 return were treated as valid, the appropriate order by the AAC would have been to annul the assessment rather than merely set it aside to be re-done by the ITO.

Revenue / Income Tax Officer / Tribunal Positions

  • The Income Tax Officer treated the March 30, 1965 return as a return under Section 139(4) and held the March 28, 1966 return invalid as a revised return under Section 139(5) because s.139(5) applies only where the earlier return was furnished under sub-section (1) or (2).
  • The Appellate Assistant Commissioner took the view that the 1922 Act governed the procedure for that assessment year and that the revised return was valid under Section 22(3) of the 1922 Act; accordingly he set aside the assessment and directed re-examination by the ITO.
  • The Tribunal held Section 297(2)(b) of the 1961 Act applied (so the 1961 Act procedure governed), treated the March 30, 1965 return as a valid voluntary return under Section 139(4), and concluded the March 28, 1966 return could not be a revised return under Section 139(5) nor a valid s.139(4) return (as it was filed after the four-year limit). The Tribunal therefore held the ITO was justified in ignoring the second return and declined to cancel the assessment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
C.I.T. v. Kulu Valley Transport Co. (P) Ltd., 1970-77 I.T.R. 518 (S.C.) Interpreted Section 22(2‑A) and Section 22(3) of the 1922 Act to hold that a return filed at any time before assessment can be treated as having been filed within the time prescribed for purposes of substantive rights (in that case, carrying forward of losses). The court considered the decision and the reasoning but declined to extend its principle into a general proposition equating returns under Section 22(3)/139(4) with those under Section 22(1)/139(1) for all purposes; specifically, the court rejected the assessee's attempt to rely on that decision to hold that a return under s.139(4) could be revised under s.139(5).

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps, applying statutory text and considered policy:

  1. Choice of governing statute: The court held that Section 297(2)(b) of the 1961 Act requires that where a return of income was filed after commencement of the 1961 Act (other than in pursuance of a notice under Section 34 of the 1922 Act) for an earlier year, the assessment must be made according to the 1961 Act's procedure. The Tribunal's conclusion that the 1961 Act applied was accepted as correct.
  2. Characterisation of the March 30, 1965 return: Since that return was not filed within the time contemplated under Section 139(1) or (2) and no extension was sought or granted, the court treated the March 30, 1965 return as a voluntary return under Section 139(4), which allowed filing within four years from the end of the assessment year so long as assessment had not been completed.
  3. Whether the March 28, 1966 return could be a revised return under s.139(5): The court observed that s.139(5) by its language permits revision only where the original return was furnished under sub-section (1) or (2). The legislature's omission of any reference to sub-section (4) was significant. The court found that s.139(5) does not allow revision of returns originally filed under s.139(4).
  4. Response to the assessee's reliance on Kulu Valley: The court considered the Supreme Court decision cited by the assessee but distinguished its context — that decision interpreted procedural provisions of the 1922 Act (s.22(2-a) and s.22(3)) in relation to substantive rights (carrying forward of losses) and was not a general rule equating all consequences of returns filed under s.22(3) with those under s.22(1). Because s.22(3) of the 1922 Act was split into s.139(4) and s.139(5) in the 1961 Act, the observations in Kulu Valley could not be extended to make s.139(4) equivalent to s.139(1)/(2) for the specific purpose of invoking s.139(5).
  5. Textual and purposive considerations: The court emphasized the literal language of s.139(5), the absence of a deeming provision in s.139(4) equating it to s.139(1)/(2), and policy considerations — namely that s.139(5) appears intended as a limited "locus penitenti" for assessees who filed timely returns under s.139(1)/(2). By contrast, assessees using s.139(4) enjoy an extended filing window (originally four years) and could file multiple returns within that period; hence the legislature may not have intended to grant them an additional statutory right of revision under s.139(5).
  6. Conclusion on the referred question: On these bases the court concluded the Tribunal's view was correct; the Tribunal was justified in law in not cancelling the order of assessment when the ITO ignored the March 28, 1966 return and processed the March 30, 1965 return.

Holding and Implications

Holding:

Reference answered in the affirmative. The High Court held that the Tribunal was justified in law in not cancelling the order of assessment passed by the Income-Tax Officer when he processed the return dated March 30, 1965 and ignored the return dated March 28, 1966.

Immediate consequences and costs:

  • The Tribunal's determination that the ITO acted properly in ignoring the March 28, 1966 return and proceeding on the March 30, 1965 return is upheld.
  • The Commissioner is entitled to costs in the reference; counsel's fee awarded: Rs. 200/-. (As stated in the opinion.)

Broader implications:

The court declined to extend the Supreme Court decision in C.I.T. v. Kulu Valley Transport Co. into a general proposition equating returns under Section 22(3)/139(4) with returns under Section 22(1)/139(1) for the specific purpose of invoking Section 139(5). The opinion therefore resists recognizing a new broad rule that would allow revision under s.139(5) of returns originally filed under s.139(4). The court expressly did not decide or express an opinion on whether the AAC should have annulled the assessment instead of setting it aside, because that question did not arise on the view adopted.

Show full summary ...

    Shri O. P. Malhotra, New Delhi Petitioner v. Commissioner Of Income Tax

    S. Ranganathan, J.:— This is an income tax reference pertaining to the assessment year 1960-61 corresponding to the previous year ending on March 31, 1960.

    2. For the above assessment year Shri O.P Malhotra, the assessee, filed a return showing an income of Rs 1,720 (which was below the taxable limit) on March, 31, 1965. On March 28, 1966, he filed a revised return declaring an income of Rs 4,295. The assessment was completed by the Income Tax Officer on March, 29, under Section 143(3) of the Income Tax Act, 1961 on a total income of Rs 20,000.
    3. The Income Tax Officer observed that the assessee had filed a return income under Section 139(4) of the Income Tax Act, 1961 on March 30, 1965. The rewised return purportedly filed by the assessee was, according to the Income Tax Officer. an invalid return because See 139(5) of the 1961 Act enabled the assessee to file a revised return only in cases where a return had been furnished by him under sub Section (1) or (2) of Section 139 of the Act, and as the assessee had not filed the return dated march 30, 1965 under either of the above mentioned sub-sections, the return dated March 28, 1966 could not be supported by reference to Section 139(5) of the Act.
    4. The assessee preferred an appeal to the Appellate Assistant Commissioner. He objected to the finding of the Income Tax Officer that the return dated March 28, 1966 was an invalid return and claimed that the assessment made by discarding the said return was bad in law. There were also other grounds raised regarding the merits of the assessment.
    5. The Appellate Assistant Commissioner observed that the assessment order in question was for the assessment year 1960-61, that at the relevant time the Indian Income Tax Act, 1922 was in force and that the procedure regarding the filing of the returns in this case would be governed by the said Act, According to the Appellate Assistant Commissioner, the revised return filed by the assessee was a valid return in terms of Section 22(3) of the 1922 Act. He was, therefore, of the opinion that the Income Tax Officer had erred in igenoring the revised return and the assessment completed by him was not in order. He, therefore, set aside the assessment and directed the Income Tax Officer to take note of the revised return, examine the case properly by giving the assessee necessary opportunity to represent his case and thereafter complete the assessment afresh.
    6. The assessee preferred a further appeal to the Tribunal, contending that, having found that the assessment had not been properly made, the Appellate Assistant Commissioner should have annulled or cancelled the assessment and not set it aside for being redone after making necessary inquiries. The Tribunal pointed out that, in view of Section 297(2)(b) of the new Act of 1961, the assessment of the assessee, through for the assessment year 1960-61, had to be completed in accordance with the procedure outlined in the new Act. It was pointed out that under the provisions of the 1961 Act, the return dated March 30, 1965 had been correctly treated as a return filed under Section 139(4) of the 1961 Act. The subsequent return dated March 28, 1966 could not be treated as a revised return under Section 139(5) as the assess had not furnished# a return under sub-section (1) or (2) of Section 139 of the 1961 Act. It could not also be treated as a voluntary return under Section 139(4) as it had been filed after the expiry of four years from the end of the assessment year. The Tribunal, therefore, came to the conclusion that the Income Tax Officer had acted legally in ignoring the second return filed by the assessee and that, therefore, the order of assessment could not be cancelled. Having arrived at this conclusion, the Tribunal should have modified the order of the Appellate Assistant Commissioner setting aside the assessment and directed him, instead of deal with the grounds of appeal by the assessee regarding the merits of the assessment for, the direction of the Appellate Assistant Commissioner to the Income Tax Officer to redo the assessment on the basis of the return of 1966 could no longer survive. However, the tribunal only observed that it would not cancel the order of assessment by the Income Tax Officer and dismissed the appeal filed by the assessee.
    7. At the request of the assessee, the Tribunal has referred the following question to the High Court for its decision:
    “Where on the facts and in the circumstances of the case, the Tribunal was justified in law in not cancelling the order of assessment passed by the Income-Tax Officer when he processed the return dated March 30, 1965 by ignoring the return dated March 28, 1966 filed by him?”
    8. Before dealing with the arguments put forward by Mr. M.L Verma on behalf of the assessee — application the relevant provisions of the 1922 Act and 1961 Act may be briefly referred to. Under the 1922 Act, a general notice had to be published by the Income Tax Officer on or before the 1st of May every year requiring all persons whose total income during the previous year exceeded the maximum amount not chargeable to income tax to file a return within a specified period. Any assessee falling within the above description had to file such a return either within the time prescribed in the notice or such time as may be granted by way of extension by the Income Tax Officer. Section 22(2) provided for an individual notice by the Income Tax Officer to any person whose total income, in the Officer's opinion, would render him liable to income tax. this individual notice again called upon the specific assessee to file a return within a period specified in the notice and such period again could be extended by the Income Tax Officer. Sub-Section (2-A) permitted a person, who had not been served with a notice under sub-section (2) and who had incurred any business loss during the previous year which could be carried forward to subsequent years, to furnish “within the time specified in the general notice given under sub-section (1) or within such further time as the Income Tax Officer, in any case may allow” a return showing the amount of loss which he claims he is entitled to carry forward and the sub-section further directs that “the provisions of this Act shall apply as if it was a return under sub-section (1)”. Sub-section 22(3) is very relevant for the present case and it was in the following words:—
    “If any person has not furnished a return within the time allowed by or under sub-section (1) or sub-section (2) or having furnished a return under either of those sub-sections, discovers any omission or wrong statement therein, he may furnish a return or revised return as the case may be, at any time before the assessment is made.”
    Section 139, the corresponding section of the Act of 1961, also runs more or less on the same lines but with some differences. Section 139 (1) dispenses with the general notice which had to be put up by the Income Tax Officer and substitute it by an obligation on the part of any person, whose total income during the previous year exceeded the maximum amount not chargeable to income tax, to furnish a return on or before the date specified in sub-section. The provision also empowers the Income Tax Officer to extend the date for the furnishing of the return. Section 130(2), which corresponds to Section 22(2), requires the assessee, on receipt of notice from the Income Tax Officer, to file a return within 30 days from the date of service of the notice. This sub-section also empowers the Income Tax Officer to extend the date for the furnishing of the return. Sub-section (3) of Section 139 corresponds to Section 22(2-A) of the 1922 Act, Sub-section (4) and (5) of Section 139 corresponds to Section 22(3) of the 1922 Act. Sub-section (4) at it stood at the relevant time enabled any person “who has not furnished a return within the time allowed to him under sub-section (1) or (2)” to furnish a return but the said return had to be filed before the assessment was made and before the end of four years from the end of the assessment year to which the return related. Sub-section (5) is in the following terms:—
    “(5) — If any person, having furnished a return under sub-section (1) or sub-section (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made”.
    The question of validity or otherwise of the returns filed by the assessee has to be determined in terms of the above statutory provisions. the first question that has to be considered is as to whether the assessment procedure in this case is to be governed by the provisions of the 1922 act or those of the 1961 Act. As has been mentioned earlier, the appellate Assistant Commissioner took the view that the provisions of the 1922 act were applicable but the Appellate Tribunal took a contrary view. The view taken by the Tribunal is clearly the correct one. Section 297(2)(b) of the 1961 Act lays down that, where a return of income has been filed by any person, after commencement of the 1961 Act (otherwise than in pursuance of a notice under Section 34 of the 1922 Act), for the assessment year 1961-62 or any earlier year, the assessment of the that person for that year shall be made in accordance with the procedure specified in the 1961 Act. Indeed this position is not contested by Shri M.L Verma, learned counsel for the applicant.
    9. In view of the above provision, the return filed on March 30, 1965 has to be fitted against the provisions of one or other of the sub-section of section 139. Since the return had not been filed within the time contemplated under Section 139(1) or 139 (2) — or 22(1) or 22(2) — and since no extension of time had been asked for or granted, the return dated March 30, 1965 can only be treated as a return filed voluntarily by the assessee under Section 139(4) of the 1961 Act. That sub-section enabled the assessee to file a return within four years from the end of the assessment year provided the assessment was not completed by that time. In the present case, therefore, the return filed on March 30, 1965 was clearly a valid return filed under the provisions of Section 139(4) of the 1961 Act.
    10. We now come to the return dated March, 28 1966. It will be seen that if, for any reason, it is contended that the return dated March, 30 1965 could not at all be treated as a valid return, the return dated March 28, 1966 could not also be treated as a voluntary return under Section 139(4) as it had been filed after the expiry of four years from the end of the assessment year. The attempt of Shri M.L Verma learned counsel for the applicant was, therefore, to concede the validity of the return dated March 30, 1965 as one under Section 139(4) to bring the return dated March 28, 1966 within the four corners of Section 139(5) of the Act, which enables a revised return to be filed at any tie before the assessment is made. This argument, however, meets with an initial difficulty because the provisions of sub-section (5) apply only in a case where a person, having furnished a return under sub-section (1) or sub-section (2), discovers any omission or wrong statement therein.
    11. Shri Verma tries to meet the above difficulty by arguing that there are only two types of returns — one filed voluntarily and one filed in response to a notice issued by the officer and that a return filed voluntarily is a return within the meaning of sub-section (1) whether it is filed within the time specified in that sub-section or the extended time permitted under that subsection or even sub-section (4). For this argument, he places reliance on C.I.T vs. Kulu Valley Transport Co. (P) Ltd. 1970-77 I.T.R 518 (S.C). In that case the assessee company had filed in January 1956 voluntary returns showing losses from business for the assessment years 1953-54 and 1954-55. the In-come Tax Officer took the view that, as the returns had not been filed within the time prescribed under Section 22(1) of the 1922 Act, they had not been validly filed under section 22(2-a) of the Act, and, therefore, the assessee could not claim that the losses should be determined and carried forward. The High Curt of Punjab took the view that Section 22(3) applied to all returns, whether disclosing profit or loss and whether made voluntarily or pursuant to a notice under Section 22(2) and that even if the return was filed beyond the period prescribed by Section 22(1) and disclosed a loss, the Income Tax Officer was bound to determine the loss so that it could be carried forward to the following year. The decision of the High Court was affirmed by a three Judge bench of the supreme Court, Shah, J dissenting, At page 527 the arguments on behalf of the assessee are set out in the following words:—
    “The arguments on behalf of the assessee is that section 24(2) confers the right to carry forward the loss to the following years provided the conditions contained in the sub-section are satisfied. There is no further requirement that has to be fulfilled so far as the substantive law is concerned. section 22(2-a) is merely a procedural provision and it also provides that once a return has been furnished in accordance therewith all the provisions of the Act be come applicable as if it were a return under sub-section (1). That would attract Section 22(2) and, therefore, a voluntary return can be filed even after the period mentioned in sub-section (2-A) has expired so long as the assessment has not taken place.”
    This argument appears to have been accepted by the Court. Grover J. who delivered the majority judgment said at page 529:—
    “section 24(2) confers the benefit of losses being set off and carried forward and there is no provision in section 22 under which losses have to be determined for the purpose of section 24(2). The question which immediately arises is, whether section 22(2-a) places any limitation on that right. This sub-section which has been reproduced before simply says that in order to get the benefit of section 24(2) the assessee must submit his loss return within the time specified by Section 22(1). That provision must be read with Section 22(3) for the purpose of determining the time within which a return has to be submitted. It can well be said that Section 22(3) is merely a provision to Section 22(1). Thus, a return submitted at any time before the assessment is made is a valid return. In considering whether a return made is within time sub-section (1) of Section 22 must be read alongwith sub-section (3) of that Section. A return whether it is a return of income, 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 Section 22(3). In other words, if Section 22(3) is complied with, Section 22(1) also must be held to have been complied with. If compliance has been made with the latter provision, the requirements of section 22(2-a) would stand satisfied.”
    Shri Verma strongly relies on the above observations. He points out that though the above decision had been render under the 1922 Act, it is equally applicable under the provisions of the new Act which correspond to those of the earlier sections in all material particulars. He also draws our attention to a circular of the Central Board of Direct Taxes to the above effect. His argument on the basis of above decision, is that Section 139(4) should be treated as in the nature of a proviso to Section 139(1) and that the return filed under Section 139 (1) for the purpose of applying the provisions of sub-section (5). He says that this contention is borne out by the fact the Section 271 (the penalty Section) refers only to delays in filing returns under sub-section (1) of Section 139 and not to Section 139(4). He urges that, if as assessee could make a return under sub-section (1) or (2) and then revise it at any time before the assessment is made, there is no logical reason why the right of filing a revised return should not also be available where the first return has been filed by the assessee voluntarily under the provisions of sub-section (4).
    12. The argument put forward by the learned counsel is a plausible one but, in our opinion, it cannot be accepted. Taking first the language of the provision, it is seen that Section 139 (5) it terms allows an assessee to revise only a return which has been furnished under sub-section (10) or sub-section (2). It carefully avoids a reference to Section 139(4) which, it seems to us, is significant considering that the purpose of the legislature is to permit the assessee to revise a return which he has already filed and the legislature has just outlined in sub-section (4) one of the circumstances, in addition to those set out is sub-section (1) and (2) in which the assessee could have filed a return. The reference to section 271 (1)(a) does not help because that section deals with delay in the filing of the return beyond the period contemplated by Section 139 (1) or (2) and there can be no question of a delay under Section 139 (4). Section 139(3) (which permits the filing of a return of loss) and section 139 (4-a) (introduced subsequently) specifically provide that the returns filed under those sub-sections would attract all the provisions of the Act as if they were return filed under sub-section (1) while sub-section (4) does not use any such language. It is, therefore, difficult to accept the argument that Section 139(5) entitled an assessee to rectify or revise a return filed by him under sub-section (4) unless the return so filed can be fully equated to a return under sub-section (10 or sub-section (2).
    13. In principle also, we do not find any incongruity in the above construction. It will not create any hardship, injustice or illogically as suggested by Shri Verma. Sub-section (5) was intended to provide a locuspenitentiate to assessees, who had filed their return of income in compliance with the requirements of sub-section (1), (2) and (3) and within the time allowed there under to revise the same when they discovered an omission or wrong statement therein. But where a person has not filed such a return and is availing himself of the provisions of sub-section (4) which enable him to file a return after a delay which might extend upto four years, it could well be that the legislature thought that no such opportunity of revision needed to be provided for. In the context is should be remembered that such an assessee can within the period of four years then provided for in Section 139(4) (which has been reduced subsequently to two years conformately to the amendments in Section 153 reducing the time limit for completion of assessments) file as many returns as he want. In view of this also, there was no necessity to provide a further opportunity to such an assessee to revise a return filed already after considerable delay by taking the advantage of the fact that the assessment has not been completed by them. On these considerations, we are not impressed by the argument of Shri Verma that it would not be logical to hold that a person who has originally filed a rerun could revise it as many time as he likes before the assessment is made but that such an opportunity would not be available to a person who files his first return only under Section 139(4).
    14. It remains to be considered, however, whether the decision of the Supreme Court referred to earlier has propounded an equation of a return filed under sub-section (4) to one file under sub-section (1) or (2). We think not. The Supreme Court had to consider the interpretation of section 22(2-a) which was a procedural Section. It required the return of loss filed “within the time specified in the general notice under sub-section (1) or within such further time as the Income Tax Officer in any case may allow.” The Supreme Court pointed out that section 24(2) which was the substantive Section that granted the right of set off was unqualified and that the words used in section 22 (2-a) should not be given a narrow and restricted meaning confining them only to returns filed within the time mentioned in sub-section (1). It was in that context that the Court observed that sub-section (1) and sub-section (3) of Section 22 had to be read together and that for the purposes of section 22(2-a) a return filed under Section 22(3) can be taken as having been filed within the time prescribed in sub-section (1). If we bear in mind that it is the old Section 22(3) that has now been split up into Section 139(4) and (5) it should be clear that the observations made by the Supreme Court cannot apply in the context of Section 139(5). We are, therefore, unable to accept the contention of Shri Verma which involves an extension of the principle laid down by the Supreme Court and to evolve a general proposition that return filed under Section 22(3)/139(4) is, for all purposes, a return filed under Section 22(1)/139(1).
    15. We have, therefore, come to the conclusion that the view taken by the Income Tax Appellate Tribunal was the correct view and that the question referred to us has to be answered in the affirmative and against the assessee.
    16. Shri Verma also outlined before us an argument that, in case the return dated March, 28 1966 was treated as a valid return, the proper order for the Appellate Assistant Commissioners to have passed would have been to annul the assessment and not to set it aside with a direction to the Income Tax Officer to make a fresh assessment. Since we have agreed with the view taken by the Appellate Tribunal this question does not arise nor has it been referred to us. If we had agreed with the principal contention of Shri Verma, we may have had to restore this matter for consideration by the Tribunal, but in the view we have taken, this question does not arise. Again, as pointed out earlier, the Tribunal should perhaps have restored the appeal on the file of the Appellate Assistant Commissioner and directed him to deal with the assessee's contentions on the merits of the assessment. But such a plea does not appear to have been taken before the Tribunal nor has there been any consideration by the Tribunal of that aspect nor has any question been raised or referred in that regard. We, therefore, express no opinion on the aspect of the case.
    17. The reference is, therefore, answered as stated already in the affirmative. The Commissioner will be entitled to his costs in the reference. Counsels fee Rs 200/-.
    S. V. Reference answered in the Affirmative
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    Shri O. P. Malhotra, New Delhi Petitioner v. Commissioner Of Income Tax
    (Feb 16, 1981)