A return of income filed by an assessee before the expiry of the four years from the end of the assessment year, before an assessment has been made by the Department, is a valid return and it would not be open to the Department to start proceedings under Section 34 of the Income Tax Act, 1961, on the ground that no return had been filed.

( 1 ) THE facts of the case are as follows :

( 2 ) THE year of assessment involved is 1962-63 for which the previous year ended on December 31, 1961. During the year, the assessee, being a partner, had share income from the- firm of M/s. G. S. Atwal and Co. of Asansol. According to the ITO, the assessee had not, for the year under consideration, filed any return. He, accordingly, issued notice to him under Section 148 of the Act to file the return for the said year for making the assessment. The said notice is dated January 22, 1970. The assessee by his letter dated February 4, 1970, in reply to the said notice under Section 148 of the Act, informed the ITO that the duplicate return filed by him for that year on November 1, 1969, may be treated as a return filed by him in response to the said notice for the said year. The ITO, after issuing notice under Section 143 of the Act, computed the total income of the assessee for the year at Rs. 1,55,875. It may be mentioned that the ITO in the assessment order for the said year had rejected the plea of the assessee that he had filed the return for that year on May 10, 1963 (? ). According to him (ITO), there was no material or evidence forthcoming fr6m the assessee to prove that fact. The ITO had also noticed that for the year the assessee had filed a duplicate return dated November 1, 1969, and that there was no evidence to prove that the assessee had actually filed any return before November 1, 1969.

( 3 ) AGGRIEVED by the said assessment, the assessee brought the matter by way of appeal before the AAC of I. T. , " A " Range, Asansol. The AAC in his appellate order for that year agreed with the ITO that the assessee had not filed any return on May 10, 1965 (? ). He has further held that pursuant to the stand taken by the assessee in response to the notice served on him under Section 148 in his letter dated February 4, 1970, to treat the duplicate return of November 1, 1969, to be the return for the year under consideration, it formed a valid basis in law for the completion of the assessment for that year.

( 4 ) ON further appeal, the Tribunal observed :" May be that the return if filed on November 1, 1969, is invalid, not having been filed within a period of 4 years as provided in Section 28 (4) of the 1922 Act/139 (4) of the Act as held by the Allahabad High Court in Smt. Parbati Devi v. CIT. That decision is of no application in the present case, firstly, because the ITO has not accepted that-the said returns were filed by the assessee on November 1, 1969. Furthermore, the assessments for the years under consideration are not being made on the basis of the returns dated November 1, 1969, alleged to have been filed by the assessee. The assessments here are being completed on the basis of the notices issued by the ITO to the assessee for the years under consideration under Section 148 of the Act calling upon him to file the returns. Pursuant thereto, the assessee had intimated the ITO by his letter that the duplicate returns alleged to have been filed on November 1, 1969, for that year under consideration be treated as returns for the years under consideration. As such, those returns are the returns filed by the assessee for the years under consideration pursuant to the said notice under Section 148 of the Act. The assessments made by the ITO on these returns are valid as laid down by the Madras High Court in K. S. Ratnaswami v. Addl. ITO, [1963] 48 ITR 568 (Mad ). Therein, the headnote is as follows : ' If the assessee files a return on any date before the expiry of the four years from the end of the assessment year, before an assessment has been made by the Department, that return would be a valid return and it would not be open to the Department to start proceedings under Section 34 of the Act on the ground that no return had been filed. A return filed after the expiry of the four year period is not a return which can be properly within the scope of Sect