COMMISSIONER OF INCOME TAX Vs. A YUNUS KUNJU

JUDGEMENT

(1.) The Income Tax Appellate Tribunal, Cochin Bench has referred the following question to this court for its opinion under S.256(1) of the Income Tax Act, 1961, hereinafter referred to as "the Act";

(2.) The short facts necessary for answering the above question are as follows. Assessee in the instant case did not file a return under S.139(1) of the Act for the accounting year 1977-78. He was issued notice under S.139(2) of the Act dated 10-1-1979 calling upon him to file the returns. That notice was served on him on 25-1-1979. He did not comply with the notice by filing any return. Instead, he filed a return on 17-7-1980. Thereafter, within the period prescribed by S.139(4)(b)(iii) he filed another return on 17-11-1980. The Income Tax Officer refused to consider the second return and completed the assessment on the basis of the first return filed by the assessee. Before the Commissioner of Income Tax (Appeals), the assessee challenged the action of the Income Tax Officer and contended that the second return is to be treated as a revised one and assessment to be made on its basis. Commissioner accepted that contention and quashed the order of assessment and directed the Income Tax Officer to pass fresh order of assessment on the basis of the second return. Department questioned the action of the Commissioner by preferring appeal I.T.A.410 (Coch)/82 before the Tribunal. The stand taken by the Department was that second return filed by the assessee cannot be taken as a revised return under S.139(5) of the Act and that assessment should have been made only on the basis of the first return, namely the one filed on 17-7-1980. Assessee also took up the matter before the Tribunal in I.T.A. 307(Coch)/1982. According to the assessee, when the Commissioner quashed the order of assessment, which was based on the first return dated 17-7-1980, went wrong in directing the Income Tax Officer to complete the assessment on the basis of the revised return dated 17-11-1980. Both appeals were disposed of by the Tribunal by Annexure-C order, holding:

(3.) The Return filed R. A.427/Coch/1984 praying for referring the following question to this Court: