KHIALDAS AND SONS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is an income-tax reference under Section 256(1) of the Income-tax Act, 1961, and the following question of law has been referred by the Tribunal for answer by this court :

(2.) BRIEF facts giving rise to this reference are that--the year of assessment in question is 1981-82, previous year ending Diwali, 1980. The assessee is a registered firm. The assessee filed a return of income which was not signed by any of the partners in the manner required under Section 140 of the Act of 1961. The Income-tax Officer took the view that the return was invalid and took no cognizance of the same. He served a notice under Section 148 of the Act on the assessee-firm on December 13, 1983. In compliance with the notice, the assessee filed another return on January 11, 1984, showing the same income of Rs. 65,550 as was shown in the original return. The second return was validly filed and the Income-tax Officer thereby charged interest under Section 139(8) of the Act taking that the return had been filed late. Aggrieved by this order of the Income-tax Officer, the assessee filed an appeal before the Commissioner of Income-tax (Appeals) and the Commissioner of Income-tax (Appeals) held that omission to sign the return was a mere irregularity and not an invalidity and it was curable. Against this order, the Department preferred an appeal before the Income-tax Appellate Tribunal. The Tribunal held that it was not a curable defect under Section 292B of the Act and set aside the order of the Commissioner of Income-tax (Appeals) and upheld the order of the Income-tax Officer. In this background, the aforesaid question of law has been referred by the Tribunal for answer by this court.

(3.) SECTION 292B of the Act only says that no return of income, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of the Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. The idea is that if any minor defect is there which does not militate against the intent and purpose of the Act, then such minor defect can be cured but according to SECTION 140 which is mandatory, every return has to be signed and verified. SECTION 140 says ' that a return under SECTION 139 shall be signed and verified. The word "shall" has been used which shows that it is mandatory that every return should be signed and verified and if it is not signed and verified, then it is in breach of the provisions of SECTION 140 of the Act. Therefore, this cannot be a defect which can be cured and any return which has been filed without signature and verification of the assessee, will not be treated as a valid return. In this view of the matter, we are of the opinion that the view taken by the Tribunal is justified.