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High Court Of Calcutta
SABYASACHI MUKHERJI, SUDHINDRA MOHAN GUHA
KUMAR JAGADISH CHANDRA SINHA - Appellant
Versus
COMMISSIONER OF INCOME-TAX - Respondent
Income-Tax Reference 83 Of 1975
Decided On : 06/10/1981
INCOME TAX - Return of income - Furnishing of - Within the time allowed under Sub-section (1) or Sub-section (2) of Section 139 of the Income-tax Act, 1961 - Return filed beyond the time - Whether could be construed as a return furnished under either of the latter sub-sections - Revised return - Filing of - Under Sub-section (5) of Section 139 of the Income-tax Act, 1961 - Whether permissible - Assessment - Completion of - Within the time-limit prescribed in Section 153 (1) (b) of the I. T. Act, 1961 - Case falling within Clause (c) of Sub-section (1) of Section 271 - Whether Tribunal was correct in holding that the assessee was not entitled to file a revised return under Sub-section (5) of Section 139 of the Income-tax Act, 1961.
Fact of the Case:
The assessee filed a return of income on 13th August, 1964, beyond the time allowed under Sub-section (1) or Sub-section (2) of Section 139 of the Income-tax Act, 1961. On 18th February, 1969, a revised return was filed disclosing a capital loss due to sale of land. The ITO completed the assessment on 15th January, 1970, on the basis of the revised return and initiated penalty proceedings. For the subsequent assessment year, the assessee filed a return on 17th December, 1965, beyond the time allowed under Sub-section (1) or Sub-section (2) of Section 139 of the Act. On 17th July, 1969, the assessee filed another return disclosing capital gains due to sale of lands. The assessment was completed on 6th July, 1970, on the basis of the revised return and a notice under Section 271 (1) (c) of the Act was issued on 16th July, 1970.
Finding of the Court:
The Tribunal held that the return filed beyond the time allowed under Sub-section (1) or Sub-section (2) of Section 139 could not be construed as a return furnished under either of the latter sub-sections and that the assessee was not entitled to file a revised return under Sub-section (5) of Section 139. The Tribunal also held that the assessments were completed within the time-limit prescribed in Section 153 (1) (b) of the Act and that the case was falling within Clause (c) of Sub-section (1) of Section 271.
Issues: 1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the return of income furnished by the assessee by virtue of the provisions contained in Sub-section (4) of Section 139 of the Income-tax Act, 1961, beyond the time allowed under Sub-section (1) or Sub-section (2) of the said section, could not be construed as a return furnished under either of the latter sub-sections and in that view holding that the assessee was not entitled to file a revised return under Sub-section (5) of Section 139 of the Income-tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the assessments made by the Income-tax Officer for the assessment years 1964-65 and 1965-66 were within the time-limit prescribed in Section 153 (1) (b) of the I. T. Act, 1961 ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the cases for the assessment years 1964-65 and 1965-66 were such as falling within Clause (c) of Sub-section (1) of Section 271 ?
Ratio Decidendi: 1. A return filed beyond the time allowed under Sub-section (1) or Sub-section (2) of Section 139 of the Act could be construed as a return furnished under Sub-section (4) of Section 139. 2. A revised return could be filed under Sub-section (5) of Section 139 even if the original return was filed under Sub-section (4) of Section 139. 3. The assessments were completed within the time-limit prescribed in Section 153 (1) (b) of the Act as the case was falling within Clause (c) of Sub-section (1) of Section 271.
Final Decision: Question No. 1 is answered in the negative and in favour of the Revenue, question No. 2 is answered in the affirmative and in favour of the Revenue and question No. 3 is also answered in the affirmative and in favour of the Revenue.
( 1 ) IN this reference under Section 256 (1) of the I. T. Act, 1961, the following three questions have been referred to this court :"1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the return of income furnished by the assessee by virtue of the provisions contained in Sub-section (4) of Section 139 of the Income-tax Act, 1961, beyond the time allowed under Sub-section (1) or Sub-section (2) of the said section, could not be construed as a return furnished under either of the latter sub-sections and in that view holding that the assessee was not entitled to file a revised return under Sub-section (5) of Section 139 of the Income-tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the assessments made by the Income-tax Officer for the assessment years 1964-65 and 1965-66 were within the time-limit prescribed in Section 153 (1) (b) of the I. T. Act, 1961 ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the cases for the assessment years 1964-65 and 1965-66 were such as falling within Clause (c) of Sub-section (1) of Section 271 ?"
( 2 ) ON question No. 1, the Tribunal has held in favour of the assessee. This question has been referred at the instance of the Revenue. On the other two questions, however, the Tribunal's view was against the assessee and these have been referred at the instance of the assessee. It appears that the facts lie within a short compass and the point involved is also short, We are concerned with two assessment years, viz. , the assessment years 1964-65 and 1965-66. For the first year, the last date on which the return could be filed under Section 131 (1) of the I. T. Act, 1961, was 30th June, 1964. In this case, no notice under Section 139 (2) of the Act had been served so as to enable the assessee to file the return within the time under that sub-section. According to the assessee, 13th August, 1964, was the date for filing the original return, which was indisputably accepted as a return filed under Section 139 (4) of the Act, that is, the date on which the original return was filed. On 18th February, 1969, a revised return was filed disclosing a capital loss due to sale of land. It is the case of the assessee that the revised return, in the facts and circumstances of the case, was not warranted by the provisions of law specially in view of Sub-section (5) of Section 139 of the Act. About this date, there is little discrepancy. The date, according to the order of the ITO, was 18th January, 1969. However, according to the order of the AAC as well as the order of the Appellate Tribunal the date was 18th February, 1969, and we shall accordingly proceed on the basis, that is to say, on 18th February, 1969, the so-called return, which has been described as a revised return disclosing the capital loss, was filed. According to the assessee, 31st March, 1969, was the date within which the assessment should have been completed under the law, being the expiry of the four years of the relevant assessment year. But, in this case, the assessment was completed on the basis of the so-called revised return on 15th January, 1970, and on that date the penalty proceedings were initiated. So far as the assessment year 1965-66 is concerned, 30th June, 1965, was the date, according to the assessee, within which the return under Section 139 (1) of the I. T. Act, 1961, could be filed. In this case also, no notice under Section 139 (2) of the Act had been served so as to enable the assessee to file the return within the time thereunder. 17th December, 1965, was the date for the filing of the original return which was accepted as the return under Section 139 (4) of the Act. On 17th July, 1969, the assessee filed another return which he described as the revised return disclosing capital gains due to sale of lands. According to the assessee, in the facts a
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