Gauhati High Court
Sunanda Ram Deka vs Commissioner Of Income-Tax on 4 February, 1994
Equivalent citations: [1994]210ITR988(GAUHATI)
Author: S.N. Phukan
Bench: S.N. Phukan
JUDGMENT Dr. M.K. Sharma, J.
1. This is an application under Section 256(1) of the Income-tax Act, 1961, filed by the assessee against the order dated November 22, 1990, passed by the Tribunal, Gauhati Bench, Gauhati, in Reference Application No. 76/(Gau) of 1990 in Income-tax Appeal No 240/ (Gau) of 1988 for the assessment year 1981-82 rejecting the reference application under Section 256(1) of the Income-tax 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 :
"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the revised return filed by the assessee on March 31, 1984, was not a revised return referring and/ or relying on the decision of the Gauhati High Court in the case of F.C. Agarwal v. CIT [1976] 102 ITR 408 ?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the revised return filed on March 31, 1984, was not valid without taking into consideration the advertisement published in The Statesman dated January 5, 1971, issued by the Central Board of Direct Taxes in the nature of a circular binding on the taxing authorities in the matter of filing of revised returns ?"
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 Section 139(5) of the Income-tax 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-section (5) of Section 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.
3. The aforesaid view has also been expressed by this court in the case of F.C. Agarwal v. CIT [1976] 102 ITR 408. In the instant case, it appears that the assessee filed the return of income for the assessment year 1981-82 on April 3, 1982, declaring a total income of Rs. 1,50,717 to the Income-tax Officer, A-Ward, Tezpur. The revised return was filed on November 7, 1983, declaring a total amount of Rs. 1,88,740. The Income-tax Officer after completing the hearing sent a draft assessment order to the assessee under Section 144B on March 19, 1984. The assessee objected to the draft assessment order and filed a revised return on March 31, 1984, to the Income-tax Officer, A-Ward, Tezpur, showing a total income of Rs. 6,43,390.
4. 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 March 31, 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.
5. With regard to question No. 2, learned counsel for the assessee has relied upon the decision in the case of F. C. Agarwal [1976] 102 ITR 408 (Gauhati). In our opinion, the 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 January 5, 1971, as published in the daily issue of the Statesman. Mr. Choudhury also refers to a decision in the case of D.B. Madan v. CIT [1991] 192 ITR 344, 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 Section 256(2) of the Income-tax 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.