Dipak Kumar Sen, J.
1. This reference under the I.T. Act, 1961, arises out of the assessment of Mst. Zulekha Begum (Khatoon), the assessee, in the assessment year 1963-64, for which the relevant previous year was the financial year 1962-63.
2 .The facts found and/or admitted in the proceedings are as follows : On September 14, 1964, the assessee filed her voluntary return for the relevant assessment year showing an income of Rs. 10,294. Pursuant thereto, the ITO issued to the assessee a notice under Section 143(2) of the Act. Thereafter, on September 7, 1967, the assessee filed another return, stated to be a revised return in respect of the same assessment year, showing an income of Rs. 18,429. The income was shown to have been derived from house property and leasehold property. The assessee contended that on April 18, 1962, she had purchased both the ownership as also a perpetual leasehold right in respect of the permises Nos. 21 and 22, Colootola Street, Calcutta, for a total consideration of Rs. 80,000. The ownership right was acquired for a consideration of Rs. 25,000 and the perpetual leasehold right was acquired for Rs. 55,000. The source of this consideration was stated to be, inter alia, cash and loan deposits from the mother and the five brothers of the assessee, aggregating to Rs. 46,000.
3. Before the ITO the assessee filed confirmation letters from the said creditors and/or depositors where it was stated that the amounts of the loans and deposits had been disclosed under Section 24 of the Finance (No. 2) Act of 1965. Notices under Section 131 of the I.T. Act, 1961, were sent by registered post to the said creditors and/or depositors, which were returned with the postal remark ' out of Calcutta '. Thereupon, the assessee was asked to produce the said persons. In spite of several adjournments none of them were produced and ultimately the assessee admitted that she was unable to produce them. The ITO noted the relationship between the assessee and the said persons and held that the alleged loans and deposits from the said persons were bogus. He held further that the disclosures under Section 24 of the said Finance (No. 2) Act of 1965 could not be accepted as conclusive evidence of the genuineness of the said loans and deposits. He also held that the credit worthiness of the alleged lenders and/or depositors remained unproved and that the cash book and the ledger of the assessee were concocted and had been produced in support of the alleged transactions on an after-thought for the purpose of explaining the alleged source of her investments. Accordingly, the ITO rejected the said books of account. He added back the said amount of Rs. 46,000 as income from undisclosed sources to the total income of the assessee and assessed it to tax accordingly.
4. Being aggrieved, the assessee preferred an appeal against the assessment and contended before the AAC for the first time that the assessment was without jurisdiction and a nullity as it fell within the mischief of Section 153(1)(a) of the I.T. Act, 1961. It was contended that the original return was filed by the assessee under Section 139(4) of the 1961 Act on September 14, 1964, and that the assessee had not filed any return either under Section 139(1) or Section 139(2). Therefore, the subsequent return filed on September 7, 1967, was invalid inasmuch as a revised return could not be filed under Section 139(5) of the 1961 Act in a case where initially a return had been filed under Section 139(4), A revised return under Section 139(5) could only be filed where a person had filed a return either under Sub-section (1) or (2) of Section 139 of the Act. It was contended that under Section 153(1)(a) of the 1961 Act, the assessment should have been completed by the ITO by March 31, 1968, but, in fact, the assessment was completed after that date and was, therefore, barred by limitation. The AAC construed Section 139(4) of the 1961 Act and held that a return filed thereunder was also a return contemplated under Section 139(1) or 139(2). He held that the return filed on September 7, 1967, by the assessee had to be treated as a valid return as there was a mistake in the earlier return filed under Section 139(4) and also as in the return filed on September 7, 1967, the assessee herself had made the endorsement ' revised '. Accordingly, he held that the assessment made on September 3, 1968, was sustainable under Section 153(1)(c). He had further that as proceedings had been started under Section 271(1)(c) by the ITO for concealment of income, the assessment was also valid under Section 153(1)(b).
5. So far as the disputed loans and/or deposits were concerned, the AAC found that the books of account produced by the assessee before the ITO could not be completely thrown aside even if they were imperfect and even though some of the financial transactions including the banking transactions had not been incorporated therein. On the availability of the said sum of Rs. 46,000 in the hands of the assessee before April 18, 1962, from the said loans and/or deposits he held that by reason of the declaration made by the creditors and depositors under Section 24 of the Finance (No. 2) Act of 1965, which had been accepted by the Commissioner, West Bengal-II, it could not be said that the said amounts belonged to the assessee. The declarations were sufficient evidence that the creditors and depositors had the amounts. Accordingly, he held that the said loans and/or deposits aggregating to Rs. 46,000 were genuine and directed the ITO to delete the addition of the said sum.
6. From the order of the AAC there were appeals to the Tribunal both by the assessee and the revenue. It was contended on behalf of the assessee before the Tribunal, inter alia, that the assessment which was completed on September 3, 1968, was clearly barred by limitation and that there was no provision in the Act of 1961 for filing a revised return where the original return had been filed under Section 139(4) of the Act of 1961., The finding of the AAC that the provisions of Section 271(1)(c) of the Act of 1961 were attracted to the case was also challenged.
7. The Tribunal noted that the assessee did not file any return under Sub-section (1) or (2) of Section 139 and that her return had been filed on September 14, 1964, under Sub-section (4) of the said section. The Tribunal did not accept the proposition that only one return could be filed under Section 139(4) as it only stated that a person who had not furnished a return under Sub-section (1) or (2) might furnish the return for any previous year at any time before the end of four assessment years from the end of the assessment year to which the return relates. The second return was admittedly filed by the assessee within the above time and, therefore, both the returns could be treated as having been filed under Section 139(4). The Tribunal observed that as there was no time-limit prescribed for filing a return under Section 139(4) except that such a return should be filed before the assessment was finalised, there was no necessity for making any separate provision for filing a revised return as was necessary in the case of a return filed under Sections 139(1) or 139(2).
8. As to the books of account of the assessee, the Tribunal also held that the same could not be rejected or completely thrown aside. But it had to be determined in any event whether the assessee had been able to explain the source of the funds utilised by her.
9. In the appeal of the revenue against the deletion of the said sum of Rs. 46,000 from the total income of the assessee, the Tribunal took note, inter alia, of the fact, that the alleged creditors and depositors were the relations of the assessee; that the summons issued to them at the address furnished by the assessee had come back unserved ; that the assessee did not take any steps to produce them before the ITO ; and that the declarations made by the said persons under Section 24 of the Finance (No. 2) Act of 1965 protected only the declarants and that such protection did not extend to third parties in whose books of account the amounts were shown.
10. The Tribunal concluded that the assessee had not discharged her burden of proving the genuineness of the credits and restored the addition of the said Rs. 46,000.
11. On an application of the assessee under Section 256(1) of the I.T. Act, 1961, the Tribunal has drawn up a statement of case and has referred the following questions for the opinion of this court as questions of law arising from its order:
' 1. Whether, on the facts and in the circumstances of the case, the assessment completed on September 3, 1968, was valid in law ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the addition of Rs. 46,000 representing the cash deposits in the following names:
Cash deposit on Rs.(a) Md. Safique Ahmed2-4-628,000(b) Md. Jamil Ahmed4-4-628,000(c) Md. Rafique Ahmed2-4-628,000(d) Md. Samin Ahmed4-4-628,000(e) Md. Aftab Ahmed10-4-628,000(f) Mst. Safiqunnessa10-4-626,000 46,000'
12. Mr. Pronab Pal, learned counsel for the assessee, contended at the hearing that admittedly no return had been filed by the assessee under either Sub-section (1) or Sub-section (2) of Section 139. The admitted case was that a return under s, 139(4) had been filed on September 14, 1964, on the basis whereof the assessment should have been completed by March 31, 1968, A subsequent return, purporting to be a revised return, was filed on September 7, 1967, and that the assessment was completed thereon on September 3, 1968. He submitted that the subsequent return could not be a revised return under Section 139(5) of the Act of 1961. Section 139(4) also did not authorise filing of more than one return. Therefore, the subsequent return must be held to be an invalid return and the assessment should be held to be barred under Section 153(1)(c).
13. In support of his contentions, Mr. Pal cited a decision of the Supreme in CIT v. Kulu Valley Transport Co. P. Ltd. : 77ITR518(SC) . The facts in that case were that the assessee, a private limited company, voluntarily filed returns under Section 22(3) of the Indian I.T. Act, 1922, in January, 1956, for the assessment years 1953-54 and 1954-55, respectively, showing losses incurred in the said years. No notice had been served on the assessee under Section 22(2). The ITO held that as the returns had not been filed within the statutory period, the assessee was not entitled to carry forward the losses for the said years. On appeal, the AAC did not find any reasonable cause for condoning the delay in filing the returns, He also held that the said returns were not valid returns within the meaning of Section 22(2A) of the said Act. The Tribunal upheld the order of the AAC. On a reference the Punjab High Court held that the losses as returned by the assessee should be allowed to be carried forward under Section 24(2) of the Act. On further appeal, the Supreme Court held, by the judgment of its majority, that Section 24(2) of the Act of 1922 conferred a benefit to the assessee whereby losses incurred in a particular year could be set off and carried forward to a subsequent assessment year. There was no provision in Section 22 of the Act under which losses had to be determined for the purpose of Section 24(2). Section 22(2A) simply laid down that in order to obtain the benefit of Section 24(2), the assessee must submit his return showing loss within the time specified by Section 22(1). This provision, according to the Supreme Court, had to be read with Section 22(3). It was held that a return showing a loss submitted at any time before the assessment was made was valid as it could be contended that Section 22(3) was merely a proviso to Section 22(1).
14. Mr. Pal submitted that this decision was of no assistance to the revenue inasmuch as the sections which were considered by the Supreme Court in that case were not in pari materia with the sections of the later Act which applied in the instant case. All that the Supreme Court laid down there was that a return, whether showing either a profit or a loss, could be filed under Section 22(1) or Section 22(3) of the Act of 1922.
15. Mr. A. K. Sengupta, learned counsel for the revenue, has contended on the other hand that Section 139(4) did not permit the filing of more than one return. If more than one return were filed, it would be assumed that the assessee has chosen to withdraw the earlier return and relied on the subsequent return. If the subsequent return was filed within the time allowed under the said sub-section, it could be accepted by the ITO and it would be deemed that the earlier return had been withdrawn. Where a revised return was filed under Section 139(5), both the original return and the revised return had to be kept on record. For certain purposes, e.g., computation of interest and penalty, the original return was deemed to be a valid return, but for the purposes of assessment the revised return had to be taken into account. Where two returns were filed under Sub-section (4) of Section 139, it could not be said that the second return was a revised return as in Section 139(5) but it would none the less be a valid return.
16. In support of his contentions Mr. Sengupta cited a decision of the Allahabad High Court in Dhampur Sugar Mills Ltd. v. CIT : 90ITR236(All) . The facts in that case were that the assessee, a company, filed a return of its income on June 20, 1961, showing a loss without annexing its balance-sheet and profit and loss account, as the same were not ready. Thereafter, on October 30, 1962, the assessee filed a revised return enclosing the said accounts. After the first return had been filed, the ITO had issued a notice under Section 22(2) of the Act of 1922. After the revised return was filed, the ITO issued notice under Section 43(2) of the Act of 1961 and finally completed the assessment under Section 43(3) of the later Act. The assessee contended that the assessment could not be lawfully made under the 1961 Act as the original return had been filed before April 1, 1962, under the provisions of the earlier Act of 1922. The AAC accepted the assessee's contentions and cancelled the assessment. The Tribunal, on appeal, held that the assessment could be validly made under the later Act. On a reference the Allahabad High Court also held that the assessment was validly made under the later Act. In the judgment of Hari Swarup J. it was observed, inter alia, as follows (p. 240):
' But, when an assessment has to be made the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return. The earlier return after a revised return has been filed, cannot form the basis of assessment although it may be used to indicate the conduct of the assessee. Hence, for the purpose of assessment of income, the effective return must be the revised return filed by the assessee ultimately.
There is a distinction between a revised return and a correction of the return. If the assessee files some application for correcting a return already filed or making amends therein, it would not mean that he has filed a revised return. It will still retain the character of an original return, but once a revised return is filed, the original return must be taken to have been withdrawn and to have been substituted by a fresh return for the purpose of assessment. '
17. Mr. Sengupta also sought to support the assessment on the ground that it fell within the ambit of Section 153(1)(b) of the 1961 Act.
18. At this stage, we may refer to the relevant sections of the I.T. Act, 1961. The material portion of Section 139 are as follows:
' 139. (1) Every person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall furnish a return of his income or the income of such other person during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed--...
' Provided that, on an application made in the prescribed manner, the Income-tax Officer may, in his discretion, extend the date for furnishing the return, and, notwithstanding that the date is 'so extended, interest shall be chargeable in accordance with the provisions of Sub-section (8)...
(2) In the case of any person who, in the Income-tax Officer's opinion is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax Officer may, before the end of the relevant assessment year (issue a notice to him and serve the same upon him), requiring Mm to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed:
Provided that, on an application made in the prescribed manner, the Income-tax Officer may, in his discretion, extend the date for furnishing the return, and, notwithstanding that the date is so extended, interest shall be chargeable in accordance with the provisions of Sub-section (8)...
(4)(a) Any person who has not furnished a return within the time allowed to him under Sub-section (1) or Sub-section (2) may, before the assessment is made, furnish the return for any previous year at any time before the end of the period specified in Clause (b), and the provisions of Sub-section (8) shall apply in every such case......
(6) The prescribed form of the returns referred to in sub-sections (1), (2) and (3) shall, in such cases as may be prescribed, require the assessee to furnish the particulars of income exempt from tax, assets of the prescribed nature and value and belonging to him, expenditure exceeding the prescribed limits incurred by him under prescribed heads and such other outgoings as may be prescribed.'
19. Section 153, inter alia, provides as follows :
'153. Time limit for completion of assessments and reassessments.--(I) No order of assessment shall be made under Section 143 or Section 144 at any time after-
(a) the expiry of-
(i) four years from the end of the assessment year in which the income was first assessable, where such assessment year is an assessment year commencing on or before the 1st day of April 1967;
(ii) three years from the end of the assessment year in which the income was first assessable, where such assessment year is the assessment year commencing on the 1st day of April, 1968;
(iii) two years from the end of the assessment year in which the income was first assessable, where such assessment year is an assessment year commencing on or after the 1st day of April, 1969; or
(b) the expiry of eight years from the end of the assessment year in which the income was first assessable, in a case falling within Clause (c) of Sub-section (1) of Section 271; or
(c) the expiry of one year from the date of filing of a return or a revised return under Sub-section (4) or Sub-section (5) of Section 139,
whichever is latest.'
20. On a consideration of the sections and the decisions cited it appears to us that if an assessee after having filed a return under Section 139(4) files another return subsequently it is to be assumed that he has given a go-by to the return filed previously and that so far as he is concerned the return filed subsequently is the correct and the proper return. Where the ITO accepts the return filed subsequently, allows it to be filed and proceeds to assess thereunder without any objection from the assessee, it would not be open to the assessee to contend later that the return filed subsequently was invalid. A similar proposition was laid down by the Punjab High Court in Bibi Gurdarshan Kaur v. CIT , where it was held that when the ITO had entertained a subsequent return and has acted on it and had issued a notice under Section 22(2) of the 1922 Act, he could not thereafter contend that the return filed was invalid and issue notice under Section 34 of the said Act,
21. Another case from which some assistance can be derived is Malik Damsaz Khan v. CIT  15 ITR 445. The facts in this case were that the assessee, a contractor, had submitted a return in pursuance of a notice issued under Section 22 of the 1922 Act in the usual form showing the income under the head ' business '. The return had been duly signed by the assessee, but the details required in the form were not supplied. Thereafter, the assessee made a statement that he had only furnished his approximate income, that his books had been destroyed by fire, that his clerk had been ill, that his books were not maintained correctly and that he should be assessed on the payments made to him by the Government. The ITO made enquiries and assessed him on a net income which was higher than the income disclosed by him in the return. On appeal, the AAC came to the conclusion that the assessee has concealed particulars of his income and has deliberately furnished inaccurate particulars and imposed penalty under Section 28. The assessee was unsuccessful in further proceedings before the Tribunal and the High Court. It was held by the Privy Council on a final appeal that irrespective of the incompleteness of the return or the fact that in an accompanying statement the assessee had sought to record that his return was only an estimate, did not prevent the ITO from accepting the return as valid and to proceed to assess the assessee under Section 23(3) and there was no ground for holding that the assessment was incompetent. It appears to us that in the instant case where the assessee has been assessed on a return filed by him within the time prescribed by Section 139(4), the assessment thereon cannot be held to be incompetent.
22. For the above reasons, we hold that the subsequent return filed by the assessee was a valid return under Section 139(4) of the 1961 Act and that the assessment thereunder was within the time prescribed under Section 153 of the said Act.
23. On question No. 2, Mr. Pal submitted that on the facts which were admitted or found by the Tribunal, the restoration of the addition of the said amount of Rs. 46,000 was patently erroneous. The evidence on record was that the lenders or depositors had made declarations under Section 24 of the Finance (No. 2) Act of 1965 and that the particulars thereof were known to the authorities. Mr. Pal contended that once the fact of such a declaration was brought before the revenue authorities they were precluded from making any further enquiry in the matter and had to accept the same. In support of his contentions Mr. Pal cited a decision of the Delhi High Court in Rattan Lal v. ITO : 98ITR681(Delhi) . The question in that case was whether the ITO could reject the explanation of an assessee in respect of a sum found credited in his books on the ground that nature and source of the said sums in the hands of the depositor in whose name the credit stood had not been satisfactorily explained though the depositor had declared it as his income in pursuance of the voluntary disclosure scheme under the Finance (No. 2) Act of 1'965, On an application under Article 226 of the Constitution, the Delhi High Court held that it was not permissible for the revenue to go into the question of the nature and source of amounts declared under the said voluntary disclosure scheme and to say that it did not represent the income of the declarant. By the fiction introduced in the said statute, the amount declared would become the income of the declarant and had to be taxed in his hands. The same amount could not be the income of any other person. Section 24 of the said Finance Act clearly overrode Section 68 of the I.T. Act, 1961, and the latter would not apply when the former would. By the non obstante clause in Sub-section (3) of Section 24 of the said Finance Act, there could be no application of Section 68 of the I.T. Act, 1961.
24. Mr. Sengupta, for the 'revenue, contended, on the other hand, that the facts found by the Tribunal remained unchallenged and, therefore, it was not open to the assessee to raise indirectly the question of perversity which the assessee had sought to raise unsuccessfully before the Tribunal. Mr. Sengupta next contended that the decision of the Delhi High Court in Rattan Lal : 98ITR681(Delhi) did not lay down the correct view and that the other High Courts had taken a different view. He cited a decision of the Gujarat High Court in Manilal Gafoorbhai Shah v. CIT : 95ITR624(Guj) . In that case, the assessee, a dealer in precious stones, was being assessed to income-tax in the assessment year 1957-58. During the proceedings the ITO noticed that the assessee's business was being financed by money introduced in the form of hundi loans and in the relevant assessment year a sum of Rs. 90,000 had been introduced in the form of hundi loans from twenty Multani brokers of Bombay. These brokers, when confronted, admitted that they had not advanced any money to the assessee and that they were merely name-lenders. This position was made known to the assessee on January 3, 1966. On January 31, 1966, five persons made declarations under Section 24 of the Finance (No. 2) Act of 1965 disclosing unassessed income aggregating to Rs. 90,000. It was stated that the said amounts had been paid in cash to the assessee for the purpose of his business. The declarants duly paid tax on the amounts declared. The assessee thereupon contended that the amount of the hundis standing in the name of the Multani brokers were in fact the money belonging to the said five persons who were originally not eager to disclose their names and that he had taken the money from the said persons.
25. The ITO rejected the contentions of the assessee. On appeal, the AAC accepted the contentions of the assessee. But the Tribunal, on further appeal, held that the credits in question were not genuine. The question whether it was open to the revenue to investigate the genuineness of the deposits aggregating to Rs. 90,000 was referred to the Gujarat High Court. The High Court, inter alia, held that the Finance (No. 2) Act of 1965 was not enacted to permit or connive at frauds sought to be committed by making benami declarations; that the protection envisaged by the said Act was confined to declarants only and no one else and that the revenue could not be prevented by the said Act from correctly assessing the income of third persons. It was held that it was open to the revenue authorities in the facts to investigate into the genuineness of the deposits and record a finding in respect of the declarations.
26. Mr. Sengupta has also brought to our notice a decision of the Allahabad High Court in Badri Pd. and Sons v. CIT : 98ITR657(All) . The facts in that case were that the assessee, a partnership firm, was being assessed to income-tax in the assessment year 1967-68. In the accounts two amounts were found credited in the names of the two ladies who were the wives of the two partners in the firm. The assessee was required to explain the cash credits. The ladies filed affidavits stating that the money belonged to them and evidence was adduced to show that they had disclosed the said amounts under the Finance (No. 2) Act of 1965 and that tax had been paid by them on the said amounts. The ITO held that the explanation furnished by the assessee was not satisfactory and applying Section 68 of the I.T. Act, 1961, he added back the amounts. On appeal, the AAC accepted the contentions of the assessee but on further appeal, the Tribunal upheld the contention of the revenue. On a reference the Allahabad High Court also accepted the contention of the revenue and held that a mere charge of tax under the voluntary disclosure scheme could not convert the money into the income of the declarants if it did not belong to them. The disclosure made by the ladies and the tax paid thereon was of no relevance in establishing whether the money belonged to them or did not belong to their husbands and by themselves did not discharge the burden under Section 68 of the I.T. Act, 1961, on the assessee of explaining the cash credits.
27. It appears to us that in rejecting the explanation of the said deposits the Tribunal has taken note of the following facts ;
(a) The alleged lenders and depositors were closely related to the assessee.
(b) Inspite of the notices served on them none of then chose to appear and admit that they had in fact advanced the moneys to the assessee.
(c) The assessee failed to produce any of the said persons before the ITO and admitted her inability to do so.
(d) All the amounts were deposited in cash and did not pass through bank accounts.
(e) The said persons had made declarations in respect of the said amounts and had paid tax in respect of the same.
28. On the basis of the aforesaid, the Tribunal came to the conclusion that the burden of explaining the deposits had not been discharged by the assessee in the present case. None of the primary facts nor the conclusions or inferences derived therefrom having been challenged by the assessee, it is in our view not open to the assessee to invite us to arrive at a different conclusion from what had been reached by the Tribunal. We do not accept the contention of Mr, Pal that the question as framed is a question of law. The Tribunal has not drawn any legal inference from the Finance (No. 2) Act of 1965 except that the protection afforded under the said Act does not apply to a third person who is not a declarant. This conclusion does not appear to us to be erroneous.
29. We, however, would like to observe that we do not agree with the decision of the Allahabad High Court in Badri Pd. and Sons : 98ITR657(All) . In our view, once a declaration has been made under the Finance (No. 2) Act of 1965, so far as the declarant is concerned, it will be a presumption of law that the amount declared is his income. Thereafter, it will no longer be open to the revenue to enquire into the question whether in fact the amount is the declarant's income or not or of the source from where the declarant obtained the money. But we make it clear that this would not prevent the revenue authorities from enquiring the genuineness of a loan shown by a third person, who alleges that the money was received from a person who may be a declarant under the said Finance Act. The enquiry will be necessarily confined to the question as to whether in fact the loan was received from the declarant. The enquiry cannot go further and the source of the money in the hands of the declarant cannot be investigated.
30. For the reasons as stated above, we answer the questions referred as follows :
31. Question No. 1 is answered in the affirmative and in favour of the revenue.
32. Question No. 2 is answered in the affirmative and also in favour of the revenue.
33. In the facts and circumstances of this case, there will be no order as to costs.
C.K. Banerji, J.
34. I agree.