1. These eleven reference applications have been filed under Section27(3) of the Wealth-tax Act, 1957 (hereinafter referred to as 'the Act'),as the petitioner's application under Section 27(1) of the Act was rejected.As these reference applications pertain to the same assessee But for differentassessment years, all are being disposed by this common order.
2. The point of law on which the petitioner wants a reference to be called for is as under- :
'Whether, on the facts and circumstances of the case and in law, the Tribunal was justified in holding that the assessment order made by the Wealth-tax Officer on March 17, 1980, was barred by time limit and, consequently, in quashing the assessment ?'
3. We have heard learned counsel for the Revenue and the assessee. The brief facts giving rise to these reference applications are that, until the year 1963-64, the assessee was being assessed in the status of a Hindu undivided family. The returns for the assessment years 1969-70 to 1974-75 were filed in response to the notices issued under Section 14(2) of the Act. These returns were filed without mentioning the status. Returns for 11 years were filed in the status of an individual showing the wealth received on partition of the Hindu undivided family and also individual wealth. The assessee again filed returns of wealth for 11 years on March 26, 1979, showing his status as individual. The Wealth-tax Officer framed the assessment on March 31, 1979, as Hindu undivided family, as the status up to 1963-64 was in this capacity and the claim of partition was neither made nor accepted. The appeals of the assessee were accepted by the Assistant Commissioner on the ground that the status of the assessee should not be changed in respect of the returns submitted by him. If the Wealth-tax Officer wanted to assess in the status of a Hindu undivided family, then he could take appropriate action. This order of the Appellate Assistant Commissioner became final. Then the Wealth-tax Officer proceeded to make assessment on the basis of the returns filed on March 26, 1979, in accordance with the directions under Section 16(3) of the Act. The assessee contended before the Wealth-tax Officer that belated returns filed on March 26, 1979, are legally not revised returns but this contention was rejected. The assessee preferred an appeal before the Appellate Assistant Commissioner and, on appeal, it was held that, if the Wealth-taxOfficer was of the opinion that the assessee held the properties not in the status of an individual but as karta of the Hindu undivided family, he should have issued notices under Section 14(2) or 17 of the Act to the Hindu undivided family and completed the assessments after including the immovable properties which were sub-divided amongst the four members of the family but, instead of doing so, the Wealth-tax Officer completed the assessments on the assessee in the status of a Hindu undivided family as against individual shown by him in the returns. It was held that this indicates that the Wealth-tax Officer has technically accepted that there had been a partition of immovable properties in the family on May 31, 1963. While assessing a person in a status different from the one for which he had filed returns, he deserved a notice, not only under the provisions of the Act but also as a rule of natural justice. Reliance was placed on CWT v. Ridhkaran , and on that basis, the assessments framed by the Wealth-tax Officer on the Hindu undivided family for all the 11 years, i.e., 1964-66 to 1974-75, were quashed. The Wealth-tax Officer was allowed to take appropriate action if he wanted to assess the assessee in the status of a Hindu undivided family. The Wealth-tax Officer proceeded under Section 16(2) of the Act and the objection of the assessee was that the Wealth-tax Officer had no jurisdiction to assess again the returns which had already been assessed and disposed of. The contention of the assessee was that the returns of net wealth filed by the assessee were not under Section 14 ; hence the belated returns filed on March 26, 1979 were not legally revised returns and the decision on the belated returns could not be extended beyond March 31, 1979. The Wealth-tax Officer was of the opinion that the time-limit for completion of the assessment laid down by Section 17A(2) was one year from the date of filing of the revised returns and, therefore, the assessment could be made within a period of one year of the date of filing of these returns which was March 26, 1979. The assessment orders were passed on March 31, 1979 and this was within time. The objection on limitation was overruled by the Appellate Assistant Commissioner and the assessee preferred appeals before the Income-tax Appellate Tribunal and the Tribunal had a difference of opinion and the question whether the assessments in question were barred by time was referred to a third member and he decided them in favour of the assessee ; hence the appeals were allowed holding that the assessments were not made within the time limit. The application for making reference was rejected. The Tribunal refused to make reference, and hence this application.
4. In the light of the facts narrated above, learned counsel for the Revenue has placed reliance on CIT v. Dr. N. Shrivastava : [1988]170ITR556(MP) , wherein it has been held that the assessee had a right to file a subsequent return under Section 139(4) of the Income-tax Act, after he has filed a voluntary return under this section, and the limitation for the assessment would start from the date of the subsequent return.
5. In Nanjappa Textiles v. CIT : [1985]153ITR109(Mad) , it was held that the return under Section 139(4) of the Income-tax Act cannot be held to fall in a separate category as Sub-section (4) is not an independent provision by itself and cannot be taken to exist independent of Sub-sections (1) and (2) of Section 139 of the Income-tax Act. It was held that the assessment made within one year of filing the revised return was valid.
6. In Mst. Zulekha Begum v. CIT : [1981]129ITR560(Cal) , it was held that the limitation starts from the date the subsequent return was filed by the assessee.
7. In Kumar Jagadish Chandra Sinha v. CIT : [1982]137ITR722(Cal) , revised returns were filed after submission of voluntary returns. It was held that the revised returns were to be treated as substituted returns and were effective for purposes of assessment and when the assessment was completed within a year of submission of the revised return, the assessment was not barred by limitation.
8. Our High Court in Vimalchand v. CIT has dissented from Zulekha Begum's case : [1981]129ITR560(Cal) and Kumar Jagadish Chandra Singh's case : [1982]137ITR722(Cal) , cited above. It has been held that the obligatory returns are to be filed under Sub-sections (1) and (2) of Section 139 of the Income-tax Act, whereas the voluntary return is filed under Sub-section (4) of Section 139. The right of the assessee to revise the return is only in respect of the return filed under Sub-section (1) or (2) of Section 139 of the Income-tax Act and a voluntary return filed under Section 139(4) is not the same as a return envisaged by Sub-sections (1) and (2) of Section 139. The extended time-limit of one year under Section 153(1)(c) for completing the assessment will not be available in respect of a revised return purported to have been filed under Section 139(5), where originally the return was filed under Section 139(4) of the Income-tax Act.
9. We have considered the facts and circumstances of the case and we are of the opinion that a question of law does arise in this case because the period within which the assessment could be made depends upon the provisions under which the returns were submitted by the assessee and this matter requires consideration.
10. These applications are allowed and the Income-tax Appellate Tribunal is directed to state the facts of the case and refer the above question of law for the opinion of this court.