A notice under Section 148 does not have all the consequences of a notice under Section 139 (2). An assessment made in oversight of a revised return does not render the assessment so made into a nullity.

AJIT KUMAR SENGUPTA, J.

( 1 ) IN this reference under Section 256 (1) of the Income-tax Act, 1961, the following questions of law have been referred to this court for the assessment years 1968-69 and 1973-74 :"1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the revised return filed by the assessee on April 7, 1976, was a valid return?

( 2 ) IF the answer to question No. 1 above is in the affirmative, since on April 22, 1976, i. e. , the date on which the assessment was framed by the Income-tax Officer, the time-limit for completing the assessment on the basis of the revised return filed on April 7, 1976, had not expired, the Tribunal was justified in not setting aside the assessment and directing the Income-tax Officer to make a fresh assessment according to law?"2. Shortly stated, the facts are as under : the assessment years involved in this reference petition, are 1968-69 and 1973-74. The material facts for 1968-69 in brief are that the assessee filed its return of income on February 2, 1972, in response to a notice under Section 148 issued on November 8, 1971. In the assessment proceedings, a draft assessment order under Section 144b was served on the assessee on March 23, 1976. The assessee was granted extension of time to send its objection by April 7, 1976. No objections were, however, filed, instead a revised return was filed. The Assessing Officer declined to take cognizance of the return and held that the time for filing a revised return had run out on March 31, 1976, being the ordinary limitation period of four years from the end of the financial year in which the notice under Section 148 was issued, i. e. , March 31, 1972. He finalised the assessment on April 22, 1976, on the basis of the draft order prepared with reference to the original return which remained uncontested by the assessee. In appeal before the Commissioner of Income-tax (Appeals), the assessee contended, inter alia, that it had a right to file a revised return at the draft order stage as Section 139 (5) entitles the assessee to revise its return any time before the completion of the assessment. The Commissioner of Income-tax (Appeals), relying on the Tribunal's decision in I. T. A. No. 2666/ (Cal) of 1974-75 dated December 3, 1976, and also the decision of the Delhi High Court in Narinder Singh Dhingra v. CIT [1973] 90 ITR 110, cancelled the assessment on the ground that the earlier return being superseded, the Income-tax Officer had no jurisdiction to complete the assessment on the basis of such return. The Department carried the matter in appeal before the Tribunal. The Tribunal upheld the order of the Commissioner of Income-tax (Appeals ). The Revenue's contention that the facts in Hoby Centre Pvt. Ltd. (supra) were distinguishable did not appeal to the Tribunal. The further contention that an assessee having filed a return under Section 148 cannot file a revised return under Section 139 (5) was also negatived by the Tribunal. The last contention of the Revenue before the Tribunal was that the revised return virtually being similar to the earlier return except for a marginal variation of Rs. 400 could be deemed to have been acted upon, and the validity of the assessment cannot be questioned. This also did not find favour with the Tribunal as the Income-tax Officer, as evident from the assessment order, consciously ignored the revised return.

( 3 ) THE Tribunal has taken the view that the language of Section 148 clearly brings into operation Section 139 (2) with all its ramifications. According to the Tribunal, Section 148 and Section 139 (2) are on par. Therefore, when the assessee filing a return under Section 139 (2) has the option of revising his return under Section 139 (5), for the sake of parity, a return filed under Section 148 also confers on the assessee the same right of revising the earlier return under Section 139 (5) in pursuance of a notice under Section 148.

( 4 ) THE Tribun

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