- (1.) THE assessee filed its first return on November 26, 1963, showing an income of Rs. 1,12,693. A revised return was filed on March 22, 1968, and on its basis, the Income-tax Officer completed the assessment on March 19, 1969. Having failed in appeal before the Appellate Assistant Commissioner against the said assessment, it took the matter to the Tribunal which set aside the same and remanded the case for reframing the assessment according to the directions contained in its order. Accordingly, the Income-tax Officer made a reassessment on March 27, 1982. Its validity was challenged in appeal on the ground that the initial assessment completed on March 19, 1969, was barred by time. Having failed, the assessee again approached the Tribunal. The principal argument raised there was that the initial return itself having been filed under Sub-section (4), no revised return could be filed under Sub-section (5) of Section 139 of the Income-tax Act (hereinafter called "the Act" ). The Tribunal did not accept the plea that the revised return could not be filed but the main reason given by it was that after the remand, the assessing authority could not allow any point to be taken beyond the remand order and the assessment has to be framed in accordance therewith. The assessee then moved an application under Section 256 (1) of the Act which was also declined. He then filed this petition under Section 256 (2) of the Act for a mandamus to get the following four questions referred to this court: " (i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not allowing to raise the plea that the reassessment framed by the Income-tax Officer in pursuance of the direction of the Tribunal was time-barred ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the plea of limitation could not be raised in reassessment proceedings taken in pursuance to the order of the Tribunal, who had set aside the assessment ? (iii) Whether, on the facts and in the circumstances of the case, the return of income filed for the assessment year 1963-64 on November 26, 1963, was a return under Section 139 (4) which could not be revised under Section 139 (5)? (iv) Whether, on the facts and in the circumstances of the case, the revised return of income filed on March 22, 1968, could extend the period of limitation as provided under Section 153 (1) (c) of the Income-tax Act and the assessment made by the Income-tax Officer, vide his order dated March 27, 1982, is time-barred?"
(2.) A bare perusal of the four questions would show that, in fact, the points involved are only two, namely, as to whether it was open to the assessee to raise the point of limitation against the original assessment after the remand and whether the original assessment framed on March 19, 1969, was barred by time. It is not disputed that against the original assessment, the plea that it was barred by limitation was raised before the appellate authority and was turned down. Before the Tribunal, the assessee never took up this point and the same, therefore, stood concluded by the remand order. After the remand, the assessing authority had to frame the assessment in accordance with the remand order and could not take up any point beyond its scope. If the correctness of the remand order is not challenged through appropriate proceedings, as held by the Supreme Court in Nainsingh v. Koonwarjee, AIR 1970 SC 997, it would not be open to review when the matter comes again before that authority in appeal or revision against the order passed by the authorities below in accordance with the remand order. It would, therefore, be futile to get this question referred even though it may be a question of law.
(3.) ON the second point again, there is no material on record to show that the original return dated November 26, 1963, was filed under Sub-section (4) and not Sub-section (5) of Section 139 of the Act. The Income-tax Officer has recorded a firm finding that the said return was filed under Sub-section (1) or Sub-section (2) of Section 139 of the Act. The Appellate Assistant Commissioner, on the contrary, observed that the return had been filed under Section 139 (4 ). The Tribunal, as noticed above, did not accept the contention of the assessee that the orignal return could not be revised which necessarily means that they did not agree with the stand of the assessee that the same was filed under Section 139 (4) of the Act. The question as to under what provision the original return was filed being one of fact, the finding of the Tribunal would be binding on this court. Once this finding is accepted, it could not be disputed that the assessment made on March 19, 1969, was well within time. No question of law on the point of limitation would, therefore, arise on the findings recorded by the Tribunal.;