K.N. Seth, J.
1. For the assessment year 1974-75 the assessee filed its return of income on September 20, 1974, showing an income of Rs. 16,894. The auditor's report in the prescribed form as required by Section 12A of the I.T. Act was not attached to the return. The assessee filed a revised return on January 31, 1975, along with the auditor's report. It appears that for the assessment year 1974-75 the Department prescribed a new form of return. The assessee, consequently, filed another return on March 29, 1975, on the prescribed form along with the auditor's report. The assessee's total income exceeded Rs. 25,000. The ITO rejected the assessee's claim for exemption under Section 11(1)(a) of the Act on the ground that it had failed to comply with the provisions of Section 12A(b) as its income, without giving effect to the provisions of Sections 11 and 12, exceeded Rs. 25,000 and the accounts were not got audited by the time the original return was filed. The ITO further held that the assessee was not entitled to file a revised return since it had filed the return under Section 139(4A) of the Act.
2. The AAC took the view that the assessee was entitled to file the revised return under Section 139(5) as Section 139(4A) makes all the provisions of the Act applicable to a return filed under Section 139(1). The Revenue went up in appeal. The Income-tax Appellate Tribunal, 'A' Bench, Allahabad, upheld the view taken by the AAC. At the instance of the Revenue the following question has been referred for the opinion of this court :
'Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that there was no contravention of Section 12A(b) even when the assesses failed to furnish audited accounts at the time of filing the original return of income under Section 139(4A) filed along with the return under Section 139(5) ?'
3. Section 139(5) of the Act provides that 'if any person having furnished a return under Sub-section (1) or Sub-section (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made'. In order to enable an assessee to furnish a revised return two conditions must be satisfied : (i) that the original return must have been furnished under Sub-section (1) or Sub-section (2), and (ii) that the assessee discovers any omission or any wrong statement therein,
4. As noted earlier, the assessee filed the earlier return under Sub-section (4A) of Section 139. That provision provides that when a return is filed under Sub-section (4A) 'all the provisions of this Act shall, so far as may be, apply as if it were a return required to be furnished under Sub-section (1)'. The first requirement for the applicability of Sub-section (5) was, therefore, satisfied in the present case.
5. The relevant sub-section of Section 139 indicates that the return has to be furnished in the prescribed form and must also set forth such other particulars as may be prescribed. The law prescribes that when a return is filed under Sub-section (4A) it has to be accompanied by an auditor's report. Since the original return filed by the assessee was not accompanied by an auditor's report there was a clear omission in the return filed by the assessee. The second condition for the applicability of Sub-section (5) of Section 139 was also satisfied and the assessee was entitled to furnish a revised return. The view taken by the Tribunal, therefore, appears to be justified.
6. Our answer to the question referred is in the affirmative, in favour of the assessee and against the Department. No order as to costs.