Nelco (India) (P) Ltd. vs Commissioner of Income Tax

The Income Tax Appellate Tribunal, New Delhi, has referred the following question of law u/s 256(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) for opinion to this court:

"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the return of income filed by the assessee on 13-3-1980 u/s 139(4) could not be revised u/s 139(5) by filing another return on 4-1-1982?"

The present reference relates to the assessment year 1979-80 the applicant had filed the return of income of Rs. 99,374 on 8-3-1980, which was under the provisions of section 139(4) of the Act. Subsequently on 4-1-1982 it filed a return of income of Rs. 6,830 on the ground that the deduction u/s 35B of the Act had not been adequately claimed in the original return. The Income Tax Officer ignored the revised return as according to him the return originally filed on 13-3-1980 was not a return filed under sub-section (1) or (2) of section 139 of the Act and therefore, it could not have been revised u/s 139(5) of the Act. The revised return was held to be not a valid return and was consequently ignored. However, the CIT (A) agreed with the contention of the applicant and while allowing the appeal directed the Income Tax Officer to admit the revised return and consider the claim for deduction u/s 35B of the Act. The revenue preferred an appeal before the Income Tax Appellate Tribunal and the Tribunal had set aside the order passed by the CIT (A) by holding that the return filed u/s 139(4) of the Act cannot be revised u/s 139(5) of the Act.

We have heard Sri Rakesh Kumar, learned counsel for the appellant and Sri Ashok Kumar, learned standing counsel appearing for the revenue.

The controversy has now been settled by the Apex Court in the case of Commissioner of Income Tax Vs. Dhampur Sugar Mills Ltd., . The Apex Court has held that no revised return can be filed under sub-section (5) of section 139 of the Act in a case where the return is filed u/s 139(4). Once this is so, the revised return filed by the assessee is invalid in law and could not have been treated and acted upon as a revised return contemplated by sub-section (5) of section 139 of the Act.

Respectfully following the aforesaid decision, we answer the question referred to us in affirmative, i.e., in favour of the revenue and against the assessee. However, there shall be no order as to costs.