Bimal Chandra Basak, J. - (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: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in setting aside the order of the learned AAC in restoring back the order of the Income-tax Officer with the modification that the assessment in question should be treated under Section 144 of the Income-tax Act, 1961 ?"
(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 : "In the result the appeal is allowed and the assessment for 1960-61 is cancelled. The Income-tax Officer may proceed on the basis of the fact that the appellant did not file return in response to notice under Section148."
(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 : "As the assessee had not filed her income-tax return in the correct form in response to notice under Section148 of the 1961 Act, it would amount to not having filed the return at all and the assessment made by the ITO should have to be treated as one made under Section144 of the 1961 Act. No doubt, this would amount to hardship to the assessee as, in that case, she would lose her chance to make an application under Section146 of the 1961 Act to the ITO to reopen the assessment. However, that is a different issue and a mere hardship cannot make us to interpret the law in the manner not warranted in the light of the principle laid down by the Supreme Court in the cited case. In any case, even in equity, the assessee could not and should not be permitted to take the advantage of her own doings. In the present appeal it is nobody's case that the notice under Section148 of the 1961 Act was bad in law and, therefore, invalid. On the other hand, it is an admitted fact, that the notice issued under Section148 of the 1961 Act was a valid notice. In this view of the matter, we hold that the AAC was not justified in cancelling the assessment made by the ITO. We accordingly set aside the order of the AAC and restore that of the ITO with the modification stated." ;