A revised return can only be filed under Section 139 (5) of the Income Tax Act, 1961, if the original return was filed under Section 139 (1) or (2) of the Act, or if it was a voluntary return filed under Section 139 (4) within four years from the end of the assessment year.

( 1 ) THIS is an income tex reference pertaining to the assessment year 1960-61 corresponding to the evious year ending on March 31, 1960.

( 2 ) FOR the above assessment year Shri O. P. Malhotra, the assessee. filed a return showing an income of Rs. 1,720 (which was below the taxable limit) on March 31, 1965. On March 28, 1966, he filed a revised return declaring an income of Rs. 4,295. The assessment was completed by the Income Tax Officer on March 29, 1966 under Section 143 (3) of the Income Tax Act, 1961 on a total income of Rs. 20,000.

( 3 ) THE Income Tax Officer observed that the assesses had filed a return income under Section 139 (4) of the Income Tax Act, 1961 on March 30, 1965. The rewised return purportedly filed by the assessee was, according to the Income Tax Officer. an invalid return because Sec. 139 (5) of the 1961 Act enabled the assessee to file a revised return only in cases where a return had been furnished by him under sub section (1) or (2) of Section 139 of the Act, and as the assessee had not filed the return dated March 30, 1965 under either of the above mentioned sub-sections, the return dated March 28, 1966 could not be supported by reference to Section 139 (5) of the Act.

( 4 ) THE assessee preferred an appeal to the Appellate Assistant Commissioner. He objected to the finding of the Income Tax Officer that the return dated March 28, 1966 was an invalid return and claimed that the assessment made by discarding the said return was bad in law. There were also other grounds raised regarding the merits of the assessment.

( 5 ) THE Appellate Assistant Commissioner observed that the assessment order in question was for the assessment year 1960-61, that at the relevant time the Indian Income Tax Act, 1922 was in force and that the procedure regarding the filing of the returns in this case would be governed by the said Act. According to the Appellate Assistant Commissioner, the revised return filed by the assessee was a valid return in terms of Section 22 (3) of the 1922 Act. He was, therefore, of the opinion that the Income Tax Officer had erred in igenoring the revised return and the assessment completed by him was not in order. He, therefore, set aside the assessment and directed the Income Tax Officer to take note of the revised return, examine the case properly by giving the assessee necessary opportunity to represent his case and thereafter complete the assessment afresh.

( 6 ) THE assessee preferred a further appeal to the Tribunal, contending that, having found that the assessment had not been properly made, the Appellate Assistant Commissioner should have annulled or cancelled the assessment and not set it aside for being redone after making necessary inquiries. The Tribunal pointed out that, in view of Section 297 (2) (b) of the new Act of 1961, the assessment of the assessee, though for the assessment year 1960-61, had to be completed in accordance with the procedure outlined in the new Act. It was pointed out that under the provisions of the 1961 Act, the return dated March 30, 1965 had been correctly treated as a return filed under Section 139 (4) of the 1961 Act. The subsequent return dated March 28, 1966 could not be treated as a revised return under Section 139 (5) as the assess had not fudnished a return under subsection (1) or (2) of Section 139 of the 1961 Act. It could not also be treated as a voluntary return under Section 139 (4) as it had been filed after the expiry of four years from the end of the assessment year. The Tribunal, therefore, came to the conclusion that the Income Tax Officer had acted legally in ignoring the second return filed by the assessee and that, therefore, the order of assessment could not be cancelled. Having arrived at this conclusion, the Tribunal should have modified the order of the Appellate Assistant Commissioner setting aside the assessment and directed him, instead of deal with the grounds of appeal by the assessee regarding the merits o