A revised return cannot be filed under Sub-section (5) of sec. 139, when the return has been filed under Sub-sec. (4) of sec. 139 of the Act.

1. The Income-tax Appellate Tribunal, Patna Bench, Patna, referred to this court under Sec. 256(1) of the Income-tax Act, 1961 (for short "the Act"), the following two questions of law for its opinion :

" (i) Whether, a revised return can be filed when a return has been filed under Sec. 139(4) of the Income-tax Act, 1961 ?

(ii) If the answer to the above question is in affirmative, whether the assessment made on the basis of the return filed by the assessee on March 21, 1978, was a valid assessment ?"

2. For the assessment year 1975-76, the assessee filed her return of income on November 4, 1975, under Sec. 139(4) of the Act. She filed a revised return of income on March 21, 1978. Assessment was completed cm March 9, 1979, on the revised return of income. On appeal, the Appellate Assistant Commissioner set aside the assessment as invalid and directed the Income-tax Officer to complete the assessment de novo. On further appeal before the Tribunal, the only contention raised by the assessee was that when the original return was filed under Sec. 139(4) of the Act, she was not entitled under law to file a revised return and the assessment made on March 9, 1979, was time barred keeping in view the original return filed under Sec. 139(4) of the Act.

3. Under Sub-sec. (5) of Sec. 139, a revised return can be filed if the return had been filed either under Sub-sec. (1) or (2) of Sec. 139. We may reproduce Sub-sections (4) and (5) of Sec. 139 as under :

" (4). (a) Any person who has not furnished a return within the time allowed to him under Sub-sec. (1) or Sub-sec. (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 Sub-sec. (8) shall apply in every such case ;

(b) the period referred to in Clause (a) shall be - (i) where the return relates to a previous year relevant to any assessment year commencing on or before the 1st day of April, 1967, four years from the end of such assessment year ;

(ii) where the return relates to a previous year relevant to the assessment year commencing on the 1st day of April, 1968, three years from the end of the assessment year ;

(iii) where the return relates to a previous year relevant to any other assessment year, two years from the end of such assessment year."

" (5) If any person having furnished a return under Sub-sec. (1) or Sub-sec. (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made."

Sec. 153 provides for time limit for completion of assessments and Clause (c) of Sub-sec. (1) relevant for the assessment year 1975-76 is as under : " (1) No order of assessment shall be made under Sec. 143 or Sec. 144 at any time after--. . . (c) the expiry of one year from the date of the filing of a return or a revised return under Sub-sec. (4) or Sub-sec. (5) of Sec. 139, whichever is latest."

4. Thus, the contention of the assessee, in brief, is that since the assessment was not completed within one year of November 4, 1975, the assessment was barred by limitation. The Tribunal did not agree with the contention of the assessee and on an application filed under Sub-sec. (1) of Sec. 256 of the Act by the assessee referred the two questions of law to this court for its opinion.

5. This question has been considered in various High Courts and there is a divergence of opinion. The High Courts of Allahabad (Dr. S. B. Bhargava V/s. CIT [1982] 136 ITR 559 ; O. P. Malhotra V/s. CIT [1981] 129 ITR 379 (Delhi) ; Eapen Joseph V/s. CIT [1987] 168 ITR 26 (Ker) and Vimalchand V/s. CIT [1985] 155 ITR 593 (Raj) have taken the view canvassed before us by the assessee while the High Courts of Kumar Jagdish Chandra Sinha V/s. CIT [1982] 137 ITR 722 (Cal), CIT V/s. Dr. N. Shrivastava [1988] 170 ITR 556 (MP) and Nanjappa Textiles V/s. CIT [1985] 153 ITR 109 (Mad) have taken the view in favour of the Revenue.

6. Our attention has