Rastogi, J. - (1.) THIS is areference under Section 256(1) of the I.T. Act, 1961, hereafter "the Act". The Income-tax Appellate Tribunal, Delhi Bench 'C', Delhi, hereafter "the Tribunal", has referred the following question for the opinion of this court : "Whether, on the facts and in the circumstances of the case, the assessment framed by the Income-tax Officer is barred by limitation as prescribed under Section 153 of the Income-tax Act, 1961 ?"
(2.) THE assessment year involved is 1971-72, the accounting period ended March 31, 1971. Dr. S. B. Bhargava, the assessee, is a qualified eye specialist and has been in practice since long. For the assessment year 1971-72, the assessee shouldhave filed his return under Section 139(1) of the Act by June 30, 1971. No notice was issued to him under Section 139(2) of the Act. He filed a return on December 21, 1971, which would be a return under Section 139(4) of the Act. THEreafter, he filed a revised return on March 23, 1974. THE assessment was completed on January 23, 1975, and as against the disclosed income of Rs. 9,525 in the original return and Rs. 11,225 in the revised return, the total income was computed at Rs. 30,130. Aggrieved, the assessee filed an appeal and apart from challenging the assessment order on merits raised a legal plea. That plea was that the assessment made by the ITO on January 29, 1975, was barred by limitation. The assessment for this year should have been completed by March 31, 1974. According to the assessee since the return has been filed under Section 139(4) it could not be revised under Sub-section (5) of Section 139 and that return did not extend the period for making the assessment. Therefore, the assessment was beyond time. The AAC did not accept this contention on the view that under Section 139(5) any person having furnished a return can file a revised return at any time before the assessment is made in case he discovers any omission or any wrong statement therein. The time for making the assessment, therefore, stood extended by one year and so the assessment framed by the ITO on January 2, 1975, was well within time. In the quantum of income some relief was allowed. Still aggrieved, the assessee took up the matter in further appeal before the Tribunal. The assessee again urged before the Tribunal that the return filed under Section 139(4) cannot be revised under Sub-section (5) of Section 139 and hence the revised return filed by him did not extend the period for completing the assessment and the assessment framed on January 29, 1975, was thus beyond the time provided under Section 153. The Tribunal, for the reasons given in the order passed by the Delhi Bench 'B' in I.T.A. No. 969 (Del)/73-74 decided on December 19, 1974, repelled this contention and held that the assessment order was valid in law. Now, at the instance of the assessee, the question mentioned above has been referred to this court.
(3.) IT was submitted before us on behalf of the assessee by his learned counsel, Sri R. K. Gulati, that admittedly the return filed by the assessee in this case was a return under Section 139(4), that Section 139(5) does not give any right to the assessee to revise the return filed under Section 139(4) and that being so, the revised return filed by the assessee could not extend the period of limitation for completing the assessment. The assessment for this year in the normal course should have been completed by March 31, 1974. A revised return, as noted above, was filed on March 23, 1974, and the assessment was completed on January 23, 1975. In case it is accepted that a return filed under Section 139(4) cannot be revised under Section 139(5), then this assessment was made beyond the period of limitation prescribed under Section 153(1)(a)(iii) of the Act. After hearing counsel for parties we find that there is considerable merit in this contention. We may first set out the relevant provisions. Section 139 provides for a return of income. It consists of eight sub-sections. Under Sub-section (1) every person is bound to furnish voluntarily a return of his total income or the total income of any other person in respect of which he is assessable if such income during the previous year, exceeded the maximum amount which is not chargeable to income-tax. An exception to this mandatory provision for filing the return is made in the case of those salaried employees who fulfil the conditions of Sub-section (1A). Under Sub-section (2), the ITO may, in any case, serve a notice on an assessee or representative assessee whose total income, in the ITO's opinion, which is final on the point, renders him liable to income-tax requiring him to furnish within thirty days such a return. Such notice may be issued at any time in the course of the assessment year. If a notice is not issued in the course of the assessment year and the assessee does not voluntarily submit a return, and the income is not assessed in the normal course under Section 142, the ITO must proceed under Sections 147 and 148 if he wants to assess such income in the subsequent years.;