Commissioner of Income Tax Vs. Radhey Shyam Gupta - Court Judgment

Excerpt:
- indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammad - the ito completed the assessment of the assessee on 24th march, 1977. on account of the failure on the part of the assessee to comply with the notices issued by the ito, he had completed the assessment ex parte under section 144. the assessee filed an application under section 146, requesting the ito to reopen the assessment, who by his order dt. relying on this decision, the aac came to the conclusion that the subsequent revised return, which had been filed by the assessee on 26th march, 1976, was a perfectly legal return.1.the tribunal, new delhi, has referred the following questions of law under section 256(1) of the it act, 1961 (hereinafter referred to as 'the act') for opinion of this court :1. whether, on the facts and the circumstances of the case, the tribunal was correct in holding that the revised return filed by the assessee on 26th march, 1976 was not a valid return ?2. whether, on the facts and the circumstances of the case, the tribunal was correct in holding that the assessment framed by the ito on 24th march, 1977 was barred by limitation as prescribed under section 153 of it act, 1961 ?3. whether, on the facts and the circumstances of the case, the tribunal was correct in holding that the assessment made on 24th march, 1979 was invalid in the eye of law ?2. the present reference relates to the asst. yr. 1973-74.3. briefly stated the facts giving rise to the present reference are as follows :that the assessment year under reference is 1973-74, for which the accounting year ended on 31st march, 1973. under the provisions of section 139(1), the assessee-respondent (hereinafter referred to as 'assessee') was required to file return of income by 31st july, 1973. no return was filed within the time prescribed under section 139(1). the ito had also not issued any notice under section 139(2). on its own, the assessee filed a return of income on 17th nov., 1975. subsequently, on 26th march, 1976, the assessee filed a revised return. the ito completed the assessment of the assessee on 24th march, 1977. on account of the failure on the part of the assessee to comply with the notices issued by the ito, he had completed the assessment ex parte under section 144. the assessee filed an application under section 146, requesting the ito to reopen the assessment, who by his order dt. 28th march, 1977, reopened the assessment under section 146. thereafter, the fresh assessment was completed by the ito on 24th march, 1979. the assessee went in appeal against this order of assessment before the aac. the aac on some technical ground, dismissed the appeal of the assessee.the assessee went in further appeal before the tribunal. the tribunal restored the appeal to the aac for fresh adjudication. the aac thereupon disposed of the appeal on 25th april, 1984.the assessee, in appeal before the aac, had raised the ground that the assessment was illegal, as the original assessment had been made after the expiry of the time-limit prescribed for the completion of the assessment. the case of the assessee was that the return, which it had filed on 17th nov., 1975, was a return filed by it under section 139(4) of the act. according to the assessee, a return filed by it subsequently, by way of a revised return under section 139(5) on 26th march, 1976 was not a valid return. according to the assessee, a return filed under section 139(4') could not be revised. thus, according to the assessee, the subsequent return filed by it on 26th march, 1976, being not a valid return in the eye of law, was non est and no cognizance of it was required to be taken. hence, according to the assessee, the period of limitation for the completion of the assessment was to be reckoned on the basis of the return which had been filed under section 139(4) on 17th nov., 1975 and not on the basis of the subsequent so-called revised return filed on 26th march, 1976. thus, according to the assessee, the time-limit for the completion of the assessment under section 153(1)(c) was 16th nov., 1976. it was pointed that the original assessment which had been made ex parte under section 144 had been made on 24th march, 1977. it was thus contended that the original assessment was invalid, since it had not been made within the prescribed time-limit. it was further stated that since the original assessment itself was invalid, the subsequent fresh assessment made on 24th march, 1979, after the original assessment had been reopened under section 146, was also invalid and, as such, this assessment was required to be struck down. the aac did not agree with the contention of the assessee that the revised return, which had been filed by the assessee on 26th march, 1976, was non est. the aac referred to the decision of the calcutta high court in the case of kumar jagadish chandra sinha v. : [1982]137itr722(cal) wherein it had been held that where a voluntary return had been filed under section 139(4), a revised return in respect of it may be filed. relying on this decision, the aac came to the conclusion that the subsequent revised return, which had been filed by the assessee on 26th march, 1976, was a perfectly legal return. on this basis, the last day for the completion of the assessment, in accordance with the provisions of section 153(1)(c), would be 25th march, 1977. thus, according to the aac, the original assessment, which had been framed on 24th march, 1977, was within the prescribed time-limit.4. feeling aggrieved by the order of the aac, assessee preferred an appeal before the tribunal. tribunal relying upon the decision of this court in the case of dr. s.b. bhargava v. : [1982]136itr559(all) has held that as the return, which was filed on 17th nov., 1975, was not a valid return filed under section 139(1) or 139(2) of the act, it could not have been revised and, therefore, return filed on 26th march, 1976 was a non est return. tribunal further held that the assessment framed on 24th march, 1977 was not a valid assessment, inasmuch as it has been filed beyond the period of limitation as prescribed under section 153 of the act. the assessment made on 24th march, 1979 in pursuance of the order of assessment passed by the. aac was set aside by the tribunal being invalid.5. we have heard shri shambhu chopra, learned standing counsel for the revenue, nobody has appeared for the assessee.6. we find that the apex court in the case of kumar jagdish chandra sinha (dead) through lrs v. : [1996]220itr67(sc) has held that a return filed under section 139(4) and not section 139(1) or 139(2) cannot be revised and if any return has been filed revising the return under section 139(4), is invalid in the eye of law. the apex court has approved the view taken by this court in the case of dr. s.b. bhargava (supra) and has reversed the view taken by the calcutta high court in the case of kumar jagadish chandra (supra). this court in it ref. no. 55 of 1985, dt. 26th aug., 2004, nelco (india) (p) ltd. v. cit had followed the aforesaid decision of the apex court and has held that revised return is invalid in law and could not have been treated as correct return as contemplated under section 139(1). similar view was taken in it ref. no. 118 of 1981, dt. 31st aug., 2004, cit v. krashak sahkari ganna samiti ltd. this court has held that the limitation prescribed under section 139(1) of the act could not be counted from the date of filing of revised return but where a revised return has been filed revising the return filed under section 139(4) of the act.7. respectfully following the aforesaid decision, we answer the questions referred to us in the affirmative, i.e., in favour of assessee and against the revenue.