MAYA DEBI BANSAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) This reference under Section256(1) of the I.T. Act, 1961 (hereinafter referred to as "the 1961 Act"), is at the instance of the assessee. The question referred for the opinion of this court is as follows:

(2.) The facts found or admitted in the proceedings are as follows: The assessee is an individual. The assessment year is 1960-61 and the relevant accounting year is the financial year ending on 31st March, 1960. The assessee was required to file her return of income in pursuance of a notice dated the 9th September, 1963, under Section148 of the 1961 Act, as the assessee had not filed her return of income in the usual course under the provisions of Indian I.T. Act, 1922 (hereinafter referred to as "the 1922 Act"). The ITO had enclosed a blank return in Form No. 2 prescribed under Rule 12 of the I.T. Rules, 1962 (hereinafter referred to as "the new form"). The assessee submitted her return in the form as enclosed on which the ITO completed the assessment under Section 143(3) of the 1961 Act. The assessee filed an appeal against the order of assessment and contended before the AAC, inter alia, that her return having been filed in the new form, the entire proceedings were illegal and ab initio void because the assessee was required in law to file her return of income in the form as prescribed in Rule 19 of the Indian I.T. Rules, 1922. The AAC held that the impugned assessment under Section143(3) on the basis of a return not filed in the proper form was invalid and the assessment made thereon void ab initio. Accordingly, he made the following order :

(3.) Being aggrieved by the said order of the AAC, the revenue preferred an appeal to the Tribunal. It was contended before the Tribunal on behalf of the revenue, inter alia, that it was the duty oi the assessee to submit her return in the correct form and to bring to the notice of the ITO mistakes in her return, if any. It was submitted further that the assessment should be treated as made under Section 144 of the 1961 Act. It was contended on behalf of the assessee on the other hand that she had submitted her return in the blank form issued by the ITO in good faith and that it was the duty of the ITO to have enclosed the correct form. It was submitted further that if the assessment be treated as one made under Section144 of the Act of 1961, the assessee would lose her right to get reopened the said assessment. The Tribunal held that the fact that a wrong return form was forwarded to the assessee would not absolve her from filing her return in the correct form and also that the ITO had no legal obligation to issue any form. The Tribunal referred to the decision of the Supreme Court in Hazari Mal Kuthiala v. ITO [1961] 41 ITR 12 for the proposition as follows: "exercise of a power would be referable to a jurisdiction which conferred validity upon it and not to a jurisdiction which is nugatory." The Tribunal held as follows :