Rajasthan H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessment completed by the ITO on February 13, 1973, was barred by limitation ?

R.N. Surolia, for the Revenue : V.K. Singhal, for the Assessee

BY THE COURT :

This reference under s. 256(1) of the IT Act is at the instance of the Revenue for deciding the following question of law : ” Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessment completed by the ITO on February 13, 1973, was barred by limitation ? “

2. The relevant assessment year is 1967-68 for which the accounting period ended with the financial year. The assessee was required to file the return under s. 139(1) of the Act on or before September 30, 1967, but instead of filing the return, the assessee filed an application for extension of time. Thereafter, another application was filed seeking further extension of time for filing the return till November 25, 1967. No order was passed by the ITO on any of these applications and the return was also not filed by the assessee till November 25, 1967. Thereafter, the assessee made no further prayer for extension of time beyond November 25, 1967. The assessee then filed the return on November 29, 1967. Thereafter, the assessee filed a revised return on March 4, 1971, and another revised return on February 22, 1972. Admittedly, the assessee prayed for assessment on the basis of the final revised return filed on February 22, 1972, and the ITO completed the assessment on the basis of the revised return on February 13, 1973. After having obtained the assessment by the ITO on this basis without any grievance, the assessee contended that the order of assessment was time-barred not being within the period prescribed either by cl. (a) or cl. (b) of sub-s. (1) of s. 153 of the Act. The AAC accepted this contention of the assessee and allowed the appeal holding that the assessment completed by the ITO on February 13, 1973, was time-barred. The Tribunal dismissed the Revenue’s appeal against the AAC’s order affirming the view that the assessment was time- barred. Aggrieved by this view of the Tribunal, this reference has been made at the instance of the Revenue for answering the above question of law.

3. From the facts found proved on the basis of record and mentioned in the statement of case, it is clear that no return was filed by the assessee either within the prescribed period in accordance with sub-s. (1) of s. 139 or any period extended for that purpose by the ITO under s. 139(2). It is also clear that there was no request by the assessee for extension of time to file the return beyond November 25, 1967, so that the return actually filed by the assessee on November 29, 1967, was not even a return filed within the time extended by the ITO even impliedly. Admittedly, there was no order for extension of time even till November 25, 1967, and for the period thereafter there was not even a prayer by the assessee for extension of time. In such a situation, the return filed by the assessee on November 29, 1967, could only be a return filed under sub-s. (4) of s. 139 of the Act and not a return under sub-s. (1) or (2) of s. 139 of the Act. The question, therefore, is whether on this basis the provision contained in cl. (c) of sub-s. (1) of s. 153 of the Act, on which reliance is placed by learned counsel for the Revenue, is available for holding that the assessment completed on February 13, 1973, was within time.

The view taken by the two Division Benches of this Court in Vimal Chand vs. CIT (1985) 48 CTR (Raj) 52 : (1985) 155 ITR 593 and Smt. Sobharani vs. CIT (1985) 49 CTR (Raj) 53 : (1986) 160 ITR 453, is that sub-s. (5) of s. 139 is not attracted in the case of a return filed under sub-s. (4) thereof, inasmuch as a voluntary return filed under sub-s. (4) is not the same as a return envisaged by sub-ss. (1) and (2) of s. 139. On this basis, it has been held in both these decisions that the extended time-limit of one year under s. 153(1)(c) for completing the assessment is not available in respect of a revised return where originally the return was filed under s. 139(4). We are bound by these earlier Division Bench decisions of this Court. Learned counsel for the Revenue placed reliance on certain decisions of the Calcutta High Court taking the contrary view. As already stated, we are bound by the earlier decisions of this Court and, therefore, following those decisions of this Court, this reference has to be answered against the Revenue.

Before parting with the case, we must record our thanks to Shri V. K. Singhal, who appeared as amicus curiae at our request, and rendered the necessary assistance.

Consequently, the reference is answered against the Revenue and in favour of the assessee by holding that the Tribunal was justified in holding that the assessment completed by the ITO on February 13, 1973, was barred by limitation.

No costs.

[Citation : 171 ITR 19]