Bimal Chandra Basak, J.
1. This reference under Section 256(1) of the I.T. Act, 1961 (hereinafter referred to as 'the 1961 Act'), is at the instance of the assessee. The question referred for the opinion of this court is as follows:
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in setting aside the order of the learned AAC in restoring back the order of the Income-tax Officer with the modification that the assessment in question should be treated under Section 144 of the Income-tax Act, 1961 ?'
2. The facts found or admitted in the proceedings are as follows: The assessee is an individual. The assessment year is 1960-61 and the relevant accounting year is the financial year ending on 31st March, 1960. The assessee was required to file her return of income in pursuance of a notice dated the 9th September, 1963, under Section 148 of the 1961 Act, as the assessee had not filed her return of income in the usual course under the provisions of Indian I.T. Act, 1922 (hereinafter referred to as 'the 1922 Act'). The ITO had enclosed a blank return in Form No. 2 prescribed under Rule 12 of the I.T. Rules, 1962 (hereinafter referred to as 'the new form'). The assessee submitted her return in the form as enclosed on which the ITO completed the assessment under Section 143(3) of the 1961 Act. The assessee filed an appeal against the order of assessment and contended before the AAC, inter alia, that her return having been filed in the new form, the entire proceedings were illegal and ab initio void because the assessee was required in law to file her return of income in the form as prescribed in Rule 19 of the Indian I.T. Rules, 1922. The AAC held that the impugned assessment under Section 143(3) on the basis of a return not filed in the proper form was invalid and the assessment made thereon void ab initio. Accordingly, he made the following order :
'In the result the appeal is allowed and the assessment for 1960-61 is cancelled. The Income-tax Officer may proceed on the basis of the fact that the appellant did not file return in response to notice under Section 148.'
3. Being aggrieved by the said order of the AAC, the revenue preferred an appeal to the Tribunal. It was contended before the Tribunal on behalf of the revenue, inter alia, that it was the duty oi the assessee to submit her return in the correct form and to bring to the notice of the ITO mistakes in her return, if any. It was submitted further that the assessment should be treated as made under Section 144 of the 1961 Act. It was contended on behalf of the assessee on the other hand that she had submitted her return in the blank form issued by the ITO in good faith and that it was the duty of the ITO to have enclosed the correct form. It was submitted further that if the assessment be treated as one made under Section 144 of the Act of 1961, the assessee would lose her right to get reopened the said assessment. The Tribunal held that the fact that a wrong return form was forwarded to the assessee would not absolve her from filing her return in the correct form and also that the ITO had no legal obligation to issue any form. The Tribunal referred to the decision of the Supreme Court in Hazari Mal Kuthiala v. ITO : 41ITR12(SC) for the proposition as follows: 'exercise of a power would be referable to a jurisdiction which conferred validity upon it and not to a jurisdiction which is nugatory.' The Tribunal held as follows :
'As the assessee had not filed her income-tax return in the correct form in response to notice under Section 148 of the 1961 Act, it would amount to not having filed the return at all and the assessment made by the ITO should have to be treated as one made under Section 144 of the 1961 Act. No doubt, this would amount to hardship to the assessee as, in that case, she would lose her chance to make an application under Section 146 of the 1961 Act to the ITO to reopen the assessment. However, that is a different issue and a mere hardship cannot make us to interpret the law in the manner not warranted in the light of the principle laid down by the Supreme Court in the cited case. In any case, even in equity, the assessee could not and should not be permitted to take the advantage of her own doings.
In the present appeal it is nobody's case that the notice under Section 148 of the 1961 Act was bad in law and, therefore, invalid. On the other hand, it is an admitted fact, that the notice issued under Section 148 of the 1961 Act was a valid notice. In this view of the matter, we hold that the AAC was not justified in cancelling the assessment made by the ITO.
We accordingly set aside the order of the AAC and restore that of the ITO with the modification stated.'
4. Mr. Sanjoy Bhattacharya, learned advocate appearing on belxall of theassessee, has submitted that the conclusion of the Tribunal was erroneous.He submitted that the return filed not being in the prescribed form, theassessment must be held to be bad. He submitted further that Section 148 of the1961 Act provides that the notice thereunder may contain all or any of therequirements Which may be included in a notice under Section 139(2) of the 1961Act, and the provisions of the 1961 Act, so far as may be applicable, wouldapply as if it was a notice issued under that Sub-section. Section 139(2)requires service of a notice requiring the assessee to furnish a return of hisincome in the prescribed form and verified in the prescribed manner andsetting forth such particulars as may be prescribed. The admitted positionin the present case is that the blank return form forwarded by the ITOwas not the proper form and the return was submitted by the assesseethereon. The forms are statutory and it is mandatory that returns be filed inthe proper form. There being no return in the prescribed form no assessment under Section 143(3) could be made. The question as to whether the ITOwas bound to send a proper form along with his notice or not could notaffect the position when the fact was that the assessment has been made ona wrong return. No order could have been passed under Section 143(3) and theassessment is invalid. Mr. Bhattacharjee drew our attention to Section 292B ofthe 1961 Act, which came into effect on 1st October, 1975, but not retrospectively, which provides that no return shall be invalid merely by reasonof any mistake or defect or omission in such return.
5. Mr. Bhattacharya next submitted that the Tribunal was not justified in treating the assessment under Section 143(3) to be an assessment under Section 144. A 'best judgment assessment' under Section 144 had to be made on a different basis. In this case, the ITO has based his order on the return, which could not be converted into a best judgment assessment. He submitted that as a result of this order the assessee had been deprived of her remedy under Section 146 of the Act.
6. Mr. Bhattacharya next contended that the principles laid down in Hazari Mal's case : 41ITR12(SC) had no application in the facts and circumstances of this case, as there was no question of any mistake of the ITO. In support of his contention Mr. Bhattacharjee has relied on the decision in the case of CIT v. M. K. Gupta  113 ITR 473. In this case, it was held by the Allahabad High Court that where the original return, not having been filed in the proper form was not in accordance with the provisions of the Act, it had to be ignored and no penalty could be imposed on the basis of such a return.
7. Mr. Bagchi, learned advocate appearing on behalf of the revenue, submitted, firstly, that the AAC erroneously proceeded on the basis that therewas initial lack of jurisdiction of the ITO to make the assessment and that he annulled the assessment under the first part of Section 251(1)(a) of the 1961 Act and did not merely set aside the ITO's order but also directed the ITO to make a reassessment. Mr. Bagchi contended that the assessment proceedings were validly initiated under Section 148 and the assessment was completed in time. It could not be said that the ITO had no initial jurisdiction, and that the assessment was void on that score. Accordingly, Mr. Bagchi submitted that the AAC went wrong in annulling- the proceeding. In support of his contentions Mr. Bagchi cited Sant Baba Mohan Singh v. CIT : 90ITR197(All) and Rule A. Boga v. AAC .
8. Mr. Bagchi next submitted that the order of assessment in the present case cannot be held to be invalid because a wrong section had been referred to therein. Mr. Bagchi, however, did not dispute that the return in the instant case had to be submitted in the old form and not in the form as enclosed. He, however, contended that an assessment made on the basis of a return in the wrong form cannot be held to be invalid because the same could have been made under Section 144 as in the case of absence of any return. The ITO would have jurisdiction in the facts and circumstances to make an assessment under the said Section 144. Merely because the ITO has mentioned that the assessment was made under Section 143(3), it would not make the same invalid. Mr. Bagchi also cited Hazari Mal's case : 41ITR12(SC) relied on by the Tribunal and also the decisions reported respectively in CIT v. Gangaram Kanayalal & Co.  8 ITR 421, Mriganka Mohan Sur v. CIT : 95ITR503(Cal) , Ram Chand & Sons v. CIT : 63ITR252(All) , Shaik Md. Shaffi Barry v. ITO : 64ITR464(Cal) , Bidyut Prova Raha v. ITO and Laxmi Industries and Cold Storage Co. (Pvt.) Ltd. v. ITO : 79ITR248(All) .
9. We accept the contentions of Mr. Bhattacharya and it is also the admitted position that the return should have been filed in the old form and not in the new form as enclosed. The provisions for filing the return in the proper form are statutory and mandatory in, nature. No return in the proper form having been filed, the assessment could not have been made under Section 143(3) of the Act. This is also the conclusion of the Tribunal not challenged by the revenue. It is on that basis, that the Tribunal directed that the assessment should be treated as having been made under Section 144 and not, Section 143(3) of the 1961 Act.
10. In our opinion, the Tribunal was not justified in holding that the assessment should be treated as one made under Section 144. It appears that the Tribunal wrongly applied the principles in Hazari Mal's case : 41ITR12(SC) . In that case, the CIT in transferring a case from Patiala toAmbala stated in his order that he had acted under Sections 5(5) and (7A) of the Indian I.T. Act. He had power to make the order of transfer only under Section 5(5) of the Patiala Income-tax Act and not under the Indian Act. The Supreme Court held that the Commissioner had jurisdiction to transfer the case and the fact that he had referred to a wrong Act would not make the action without jurisdiction. The principle laid down in Hazari Mal's case : 41ITR12(SC) , in our view, does not apply in the facts and circumstances of this case, where admittedly an invalid return had been filed and the ITO could have no jurisdiction to make an assessment under Section 143(3) on the basis of such return.
11. The provisions of Sections 143 and 144 of the Act cannot be said to be in pari materia. Section 144 provides for the circumstances under which, in the absence of a return, a best judgment assessment can be made and the duties of the ITO in making such best judgment assessment are well known. There is no question of any reliance or reference to any return in that case. But in an assessment under Section 143(3), as had been done in the present case, the basis is the return. There has been a return, though an invalid return, on the basis of which an assessment order under Section 143(3) of the Act has been made. This cannot be treated as best judgment assessment as if no return has been filed.
12. In the present case, it is nobody's case and it has also not been foundby the Tribunal that, in the assessment order, Section 143(3) has been referred toby mistake and that the ITO in fact intended to and proceeded under Section 144.In P. Balakotaiah v. Union of India, : 1SCR1052 , the services of theappellant were terminated by the orders of the Railway authorities under Rule 3 of the Security Rules and the appellant having filed a writ petition onthe ground that the rule was ultra vires, the High Court held that theorder could be sustained under Rule 148 of the Railway Establishment Code.It was contended before the Supreme Court that when an authority passesan order which is within its competence, it cannot fail merely because itpurports to be made under a wrong provision if it can be shown to bewithin its power under any other rule and that the validity of an ordershould be judged on a consideration of its substance and not its form. TheSupreme Court observed that it had not been the contention of the autho-rities at any stage that the impugned orders were in fact made under Rule 148(3) of the Railway Establishment Code and that the reference to Rule 3of the Security Rules in the proceedings could be disregarded as havingbeen made on a mistake.
13. Where an assessment is made under Section 144 the assessee is entitled to make an application under Section 146 for setting aside that assessment. In the present case, if the ITO had made his order under Section 144 on the basis of no return, the assessee would have been entitled to make such an appli-cation under Section 146 of the Act. The ITO having proceeded under Section 143, the question of making any application under Section 146 at that stage did not arise. Under the direction of the Tribunal, that the assessment order of the ITO should be treated to be one under Section 144, the assessee is being deprived of her statutory remedy. In our view, this is a relevant factor and having regard to the same the Tribunal was not justified in directing that the assessment should have been treated as an assessment under Section 144.
14. We do not accept the contentions of Mr. Bagchi that the initiation of the proceedings was held by the AAC to be bad or without jurisdiction. Looking at the entire order and at its substance and not merely its form or only one part of it to ascertain the true scope of the same, it appears that the assessment order and not the proceedings was held to be bad and accordingly he directed the ITO to proceed from the stage of the notice under Section 148. If the initiation of the proceedings was considered to be a nullity, such a direction could not have been given.
15. For the reasons given above, we answer the question in the negative and in favour of the assessee. There will be no order as to costs.
Dipak Kumar Sen, J.
16. I agree.