SUNANDA RAM DEKA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is an application under S. 256(2) of the IT Act, 1961, filed by the assessee against the order dt. 22nd Nov., 1990, passed by the Tribunal, Gauhati Bench, Gauhati, in Reference Application No. 76/(Gau) of 1990 in IT Appeal No. 240/(Gau) of 1988 for the asst. year 1981 -82 rejecting the reference application under S. 256(1) of the IT Act, 1961, filed by the assessee. In this application, the assessee seeks to refer the following two questions, stated to be questions of law, for the opinion of this Court :

(2.) WE have heard Mr. K.H. Choudhury, learned counsel appearing for the assessee, and Mr. D.K. Talukdar, learned counsel representing the Revenue. According to Mr. Choudhury, both the questions sought to be referred by the assessee for our opinion are questions of law. According to him, since the assessee has filed the revised return after the discovery of the omission or wrong statement in the instant case, the assessee squarely comes within the provisions of S. 139(5) of the IT Act. We have heard Mr. Talukdar also on this point and we are of the opinion that the filing of the revised return after discovery of the omission or wrong statement is not by itself sufficient to bring the revised return within the ambit of Sub -S. (5) of S. 139 of the Act. In our opinion, the further requirement is that this omission or wrong statement in the original return must be due to a bona fide inadvertence or mistake on the part of the assessee. The aforesaid view has also been expressed by this Court in the case of F.C. Agarwal vs. CIT (supra). In the instant case, it appears that the assessee filed the return of income for the asst. yr. 1981 -82 on 3rd April, 1982, declaring a total income of Rs. 1,50,717 to the ITO, A -Ward, Tezpur. The revised return was filed on 7th Nov., 1983, declaring a total amount of Rs. 1,88,740. The ITO after completing the hearing sent a draft assessment order to the assessee under S. 144B on 19th March, 1984. The assessee objected to the draft assessment order and filed a revised return on 31st March, 1984, to the ITO, A -Ward, Tezpur, showing a total income of Rs. 6,43,390. We find that from the original return there has been a staggering difference in the second revised return filed and no particulars have been pointed out to explain that the revised returns were merely the result of inadvertent mistake or omission. In that view of the matter, the learned Tribunal has come to a definite factual conclusion relying on the aforesaid decision of this Court that there was no material to support the view that there was omission, mistake or wrong statement in the original return. The learned Tribunal further held that there is nothing on record to infer that the assessee has filed a revised return on 31st March, 1984, as the original return contained some mistake, omission or wrong statement which could be said to be a clerical or an inadvertent mistake or omission. The aforesaid finding of the learned Tribunal being a finding of fact, in our opinion, no question of law has arisen therefrom which is question No. 1 referred to above.

(3.) WITH regard to question No. 2, learned counsel for the assessee has relied upon the decision in the case of F.C. Agarwal vs. CIT (supra). In our opinion, ratio of the aforesaid decision does not help the assessee and is not applicable to the facts of the present case as the assessment year of the present case is 1981 -82, which is much later than the notification issued by the Department on 5th Jan., 1971, as published in the daily issue of the Statesman. Mr. Choudhury also refers to a decision in the case of D.B. Madan vs. CIT (1992) 102 CTR (SC) 169 : (1991) 192 ITR 344 (SC), wherein the apex Court has held that it cannot always be said that, in all cases where a similar question of law had been answered in an earlier case in a particular way, an identical question of law arising in a later case would cease to be a referable one and, therefore, the course to be adopted is to reject a reference under S. 256(2) of the IT Act, 1961. In our opinion, the ratio of the aforesaid decision is not applicable to the facts and circumstances of the present case as we have held that the questions of law sought to be referred to this Court aforesaid appear to us to be questions of fact and not questions of law. Accordingly, we do not find any merit in the application and the same is rejected. We, however, make no order as to costs.