1. The assessee is an individual and filed the original return on 5-3-1981. The return was filed by the legal heir of Shri C.R. Das. Shri C.R. Das died on 23-1-1979 in a motor accident on spot while going to another business place at Kalyani. The accident occurred near Haringhata. Due to his sudden death, the filing of return was belated and in the original return there were some omissions like interest on loan, etc. The return was revised and was filed on 25-2-1982. The assessment was completed on 29-3-1982. The ITO did not treat the return filed on 25-2-1982 as a revised return. The ITO was of the opinion that the original return was not filed by the assessee either under Section 139(1) or under Section 139(2) of the Income-tax Act, 1961 ('the Act') and, therefore, the return filed by the assessee cannot be taken as a return under Section 139(5).
2. The assessee took the matter before the Commissioner (Appeals) and the Commissioner (Appeals), after quoting the provisions of Section 139(5), dealt with the facts and law and ultimately rejected the argument of the assessee in the following words : The appellant's accounting year ended on 31-12-1978 and, therefore, the return for this year was due to be filed, in terms of Section 139(1), on or before 30-6-1979. The return filed, on 5-3-1981, could, therefore, not be said to be a return in terms of Section 139(1) of the Income-tax Act. Nor was a notice issued under Section 139(2) by the ITO. In the circumstances, the claim for filing of the revised return on 25-2-1982, in terms of Section 139(5) of the Income-tax Act, cannot (sic) be entertained in terms of the provisions of the law. Return filed on 5-3-1981 can, at best, be termed a return under Section 139(4) of the Income-tax Act and, in such an event, the alleged filing of the revised return on 25-2-1982 cannot be termed a revised return under Section 139(5) since the stipulations prescribed therein had not been fulfilled. Reliance can be placed in this connection on the decision of the Calcutta High Court in Narain Das Paramanand Das ITO  117 ITR 174, 184 and Brij Mohan v. CIT  120 ITR 1, 4, 5 (SC). In the circumstances, in my opinion, the alleged return, stated to have been filed on 25-2-1982, cannot be said to be a revised return as per provisions of the law and, therefore, the ITO was right in proceeding with the assessment on the basis of the return filed on 5-3-1981.
3. The assessee reiterated the arguments made before the Commissioner (Appeals) and relying in Kumar Jagadish Chandra Sinha v. CIT  137 ITR 722 (Cal.), urged that the revised return filed by the assessee was in order and, therefore, the ITO should have acted upon the revised return of the assessee.
4. The departmental representative, on the other hand, relied upon the order of the Commissioner (Appeals), on this issue and further supplemented his argument by placing reliance in O.P. Malhotra v. CIT  129 ITR 379 (Delhi).
5. The return was filed by the legal heir of the assessee after the death of Shri C.R. Das on 23-1-1979. The return was filed on 5-3-1981.
Subsequently, it was found that there were certain mistakes and the assessee had not disclosed properly the incoine from business and house property and, consequently, a revised return was filed on 25-2-1982.
The assessment was completed by the ITO though on 29-3-1982 but the assessment was completed on the basis of the return filed by the assessee on 5-3-1981.
6. The return is filed by an assessee under Section 139. The return can be filed suo moto under Section 139(1) or it can be filed within the time given in the notice issued by the ITO under Section 139(2).
However, if an assessee does not file return either under Section 139(1) or under Section 139(2), he can file return under Section 139(4). Section 139(5) gives a right to file a revised return by an assessee. It is correct that Section 139(1) and 139(2) is mentioned in Section 139(5) but the Section is silent upon the provisions of Section 139(4). If the entire Section 139 is read along with Section 143(2) of the Act, it is clear that even an assessee who has filed a return under Section 139(4) can file a revised return under Section 139(5) because the return filed under Section 139(4) is only a return filed under Section 139(1). This view is supported by the decision in Kumar Jagadish Chandra Sinha's case (supra) where their Lordships have observed as follows : The Income-tax Act contemplates the filing by the assessee of a correct and complete return. The law gives him a right to substitute and bring on record a correct and complete return if he discovers any omission or wrong statement in the return originally filed by him. The law cannot contemplate the making of an assessment on the basis of a return which even the assessee claims contains wrong statements. When an assessee files a revised return, he, in fact, admits that the original return filed by him was not correct or complete and substitutes the same by a revised return which, according to him, is correct and complete. The effective return for the purposes of assessment is thus the return which is ultimately filed by an assessee on the basis of which he wants his income to be assessed. Sub-section (5) is a part of Section 139. The statute itself provides for the filing of a revised return. Section 143 does not specifically deal with the return filed either under Sub-section (1) or Sub-section (2) or Sub-section (4) of Section 139. It deals generally with the return filed under Section 139. It is true that Sub-section (5) specifically mentions Sub-section (1) or Sub-section (2) but does not mention the case of a return filed under Sub-section (4) of Section 139. However, the true purport of a return filed under Sub-section (5) is that it substitutes the original return filed and Sub-section (4) specifically gives the assessee a right to file a return at any time before the assessment.
Hence, where a voluntary return has been filed under Section 139(4), a revised return can be filed in respect of it. (p. 722) 7. The matter can be examined, even from another angle. Even if it is presumed that the assessee was not entitled to file a revised return, the assessee has got every right to make claims before the assessment was completed. The assessee found that he has not claimed deduction for interest against house property and business income. The claim was made by the assessee as early as on 25-2-1982 and the assessment was made on 29-3-1982. The claim can be made orally or in writing before the ITO.If the return filed by the assessee on 25-2-1982 cannot be taken as a revised return, at best it can be taken as a claim made by the assessee before the ITO for allowance of deduction of interest against business and house property income. Possibly there cannot be any dispute upon this issue. If a claim has been made by the assessee through a return, the claim made by the assessee should not have been ignored by the ITO.A second presumption can also be taken which will explain the situation in detail. The same claim could have been made by the assessee through a letter before the ITO before the assessment was made. If the claim was made by the assessee through a letter before the assessment was made, the ITO could not have ignored the claim of the assessee. The claim might not have been accepted but the claim must have been considered by the ITO and thereby the assessee would have got a right to go in further appeal. If the claim of the assessee can be considered on the strength of a letter, there is no reason that the claim of the assessee cannot be considered when the same has been filed through a return and before the assessment is made. Under the above circumstances, the return filed by the assessee on 25-2-1982 was a revised return as well as it was also a claim before the ITO and, therefore, the ITO should have acted upon the return of the assessee dated 25-2-1982. Consequently, the plea of the assessee is accepted and the ITO is directed to act upon the return of the assessee dated 25-2-1982.