Kalyan Jyoti Sengupta,J. - (1.) By this writ petition notice under Section 148 read with Section 147 of the Income-tax Act, 1961, has been challenged. The short fact of the case is that the writ petitioner assessee could not file the returns of its income for the assessment years 1987-88 and 1988-89 for reasons beyond its control. However, subsequently on extension being granted the returns for both the aforesaid years were filed. The return for the assessment year 1987-88 showed loss in the business of the petitioner and asked for refund of the tax. This return, however, was declared to be invalid and/or non-existent as the writ petitioner did not file the claim of refund in the prescribed Form No. 30. In the affidavit-in-opposition it has been stated that the order of extension was not really granted and the letter of the income-tax official showing the extension is a forged document.
(2.) Mr. Khaitan, the learned advocate, appearing in support of the writ petition, submits firstly that the question of invalid order of extension does not arise, as late in the month of August, 2001, certified copy of the aforesaid order of extension was obtained and it was produced before me. He submits that the impugned notice cannot be issued on the facts and circumstances of this case as the conditions for issuance of notice under sections 148 and 147 are not fulfilled.
(3.) The next contention of Mr. Khaitan is that the return, which was held to be non-existent or invalid, is a valid one and the same cannot be rejected. Firstly, it is not a mandatory provision of the law that the application or statement under Form No. 30 is required to accompany the returns of income. At the highest the return may be irregular or defective, but the same cannot be rejected at the first instance and, under the law, the income-tax official is duty bound to give an opportunity to remove the irregularity before rejecting the same. In support of his submission, he has relied on a circular of the Board dated August 21, 1987, No. 493 being annexuie H to the petition. He has also relied on a decision of the learned single judge of the Punjab and Haryana High Court in Deep Chand Jain v. ITO [1984] 145 1TR 676. He also submits an old decision of this court in Mohindra Mohan Sirkar v. ITO [1978] 112 ITR 47 that has held that the return cannot be held outright to be invalid. Therefore, Mr. Khaitan contends that when the very basis of issuance of the notice as aforesaid is not tenable under the law, the notice must be set aside and/or quashed.;