JUDGMENT
K. Sreedharan, J.
1. The assesses is the applicant. The assessment year is 1976-77. The question referred to this court is “Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Income-tax Officer was entitled to a period of one year from the second return filed by the assessee on January 5, 1979, under Section 139(4) of the Income-tax Act, 1961, for completing the assessment ?”
2. The assessment year is 1976-77, for which the previous year ended on March 31, 1976. As against a returned income of Rs. 8,820, the Income-tax Officer determined the income at Rs. 1,01,820. This was mainly on account of an addition of Rs. 85,000 by way of income from unexplained sources. Before the Commissioner of Income-tax (Appeals), the assessee, apart from questioning the correctness of the additions made, also contended that the assessment was barred by limitation, the Commissioner of Income-tax (Appeals) while holding that the assessment was within time restored the matter to the Income-tax Officer for giving an opportunity to the assessee to cross-examine certain parties. The assessee took up the matter before the Tribunal contending that the assessment was barred by limitation.
3. The assessee filed a return of income on May 10, 1978. He filed another return on January 5, 1979. The assessment was completed on January 4, 1980. As the assessment year was 1976-77, the normal period for completing the assessment was up to March 31, 1979. The assessment on January 4, 1980, it is contended is beyond the extended period of one year available from May 10, 1978, being the date on which the first return was filed. The date of assessment will be within time only if the assessment can be validly made within one year from the second return filed on January 5,
1979. The question is whether the return filed on January 5, 1979, is valid so as to give a one year period therefrom for completing the assessment.
4. It is the common case that the assessee did not file any return as contemplated by Section 139(1) or Section 139(2) of the Income-tax Act, 1961. The assessee filed a return on May 10, 1978. That return can be treated as one filed under Section 139(4) of the Act. An assessee who filed the return invoking the provisions contained under Section 139(4) is not entitled to file a revised return under Section 139(5) of the Act. The second return or the so-called revised return filed on January 5, 1979, is also under Section 139(4) of the Act and is invalid. If it is so, the Income-tax Officer cannot have an extended period of one year from the date of the said invalid return, He should have completed the assessment within one year from May 10, 1978, on which day the return under Section 139(4) of the Act was filed. This position is recognised in Eapen Joseph v. CIT [1987] 168 ITR 26 (Ker). This court observed that (at page 31) :
“Section 139(5) of the Act permits a later or revised return to be filed only where the (original) return was filed under Section 139(1) or (2) of the Act. Filing of a revised return is not contemplated under Section 139(5) of the Act, in cases governed by Section 139(4) of the Act. Any return filed subsequent to the filing of an original return is only a revised return. If the filing of such a revised return is not contemplated or permitted in the return filed under Section 139(4) of the Act, it is not possible to say that any number of subsequent returns can be filed under Section 139(4) of the Act itself. The statute expressly provides for filing a revised return (subsequent return) under Section 139(5) of the Act, only in cases where the return is filed under Section 139(1) or (2) of the Act. So, it has to be held that the Act impliedly bars or forbids the filing of a subsequent or revised return in other cases.”
5. The above view has been followed by another Bench of this court in CIT v. A. Yunus Kunju [1994] 206 ITR 704. In the instant case, the assessee filed return under Section 139(4) of the Act on May 10, 1978. The assessee could not file a revised return as contemplated by Section 139(5) of the Act thereafter. So that return filed on January 5, 1979, was an invalid one. Based on that return, the Income-tax Officer could not have computed the period of one year therefrom. Therefore, we answer the question referred, in the negative, i.e., in favour of the assessee.
6. Learned counsel representing the Revenue, then submitted before us that we may direct the Appellate Tribunal to consider the alternative
contention raised by the Revenue and to pass appropriate orders. We are not inclined to accede to this request. The question referred need alone be answered by us.
7. We answer the question in favour of the assessee and against the Department. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Tribunal as required by law.