PETITIONER: <NAME> Vs. RESPONDENT: THE CHIEF JUSTICE AND JUDGESOF <ORG>. DATE OF JUDGMENT: 25/11/1953 BENCH: <NAME>, VIVIAN BENCH: <NAME>, VIVIAN MUKHERJEA, <NAME>, <NAME> CITATION: 1954 AIR 186 1954 SCR 454 CITATOR INFO : R 1963 SC 692 (16) R 1971 SC1132 (83) R 1972 SC 858 (5) RF 1991 SC2176 (1-1 13,21,25) R 1992 SC 904 (15,18,19,22,37,40) ACT: Contempt of court-Contempt of Judges of <ORG>-Power of <ORG> to transfer proceedings to another <ORG> - Criminal Procedure Code , 1898, ss. 1(2) , 527- Constitution of India, art. 215- Contempt of Courts Act , 1952, s. 3 . HEADNOTE: The <ORG> has no power under section 527 of the Criminal Procedure Code or under any other provision of law to transfer from a <ORG>,. proceedings which that <ORG> has initiated for contempt of itself, to another <ORG>. Section 527 of the Criminal Procedure Code does not apply to such a case as the power of a <ORG> to institute proceedings for contempt of itself and to punish the contemner where necessary, is a special jurisdiction which is inherent in all courts of record and section 1 (2) of the Criminal Procedure Code excludes such special jurisdictions 'from its scope. It-is desirable, on general principles of justice, that a judge who has been personally attacked should not as far as possible bear a contempt matter which, to that extent, concerns him personally. In re <NAME> and Mahtab(8 W.R. Cr. 32), <NAME> v. Chief justice and Judges of the <ORG> of Bengal (10 I.A. 171), <NAME> (I.L.R. 48 All.711), In the matter of <NAME> (I.L.R. 29 All. 95), Crown v. <NAME> (I.L.R. 6 Lah. 528 F.B1.), In re <NAME> (I.L.R 48.All 711), In the matter of Muslim Outlook, Lahore (A.I.R 1927 Lah. 610), In re <NAME> (I.L.R 8 Pat. 323 ) <CITATION> . 18 Lah. 69) <CITATION> for Trinidad & Tobago ( A.C. 322), <NAME> v. The Justices of Sierre Leone (8 Moo. P.C. 47), In the matter of <NAME> (I.L.R. 23 Lah. 411), <NAME> v. Emperor (A.I.R. 1945 P. C. 134), Emperor v. 455 <NAME> (A.I.R. 1945 All. 1), In re <NAME> (L. R. P. C. 106), In re <NAME> (I.L.R. 27 Bom. 394) and <NAME> v. King Emperor (I.L.R. 4 Rang- 257) referred to, JUDGMENT:

ORIGINAL JURISDICTION : Petition .(No. 304 of 1953) under section 527 of the Criminal Procedure Code. <NAME> for the appellant.

<NAME>, attorney-General for India (<NAME>, with him) for the respondent.

1953. November 25. The Judgment of the Court was delivered by <NAME> is an unusual application asking for a transfer of certain contempt proceedings from <ORG> to any other <ORG> and, in the alternative, askinG that at least the matter should not be heard by two

-of the judges of <ORG> who -are named. This at once raises a question about our jurisdiction to order such a transfer.

The learned counsel for the applicant relied on section 527 of the Criminal Procedure Code. Briefly his reasoning. was this. Section 527 authorises the transfer of any "case" from one <ORG> to another whenever it is made to appear to <ORG> that such transfer is expedient for the ends of justice. The word "'case" is not defined but "offence" is ,defined in section 4 (o) to mean "any act or omission made punishable by any law for the time being in

-force." Contempt is punishable under the Contempt .of Courts Act , 1952, therefore it is an offence punish-able by a law which is in force ; consequently, it is an offence. Being an offence it is triable under the Criminal Procedure Code because section 5 makes the Code applicable not only to the trial of offences under the. Indian Penal Code but also to the trial of offences against "other laws." As it is a matter triable under the Criminal Procedure Code it must be a "case" within the meaning of section 527 and accordingly the section can be invoked here.

We are unable to agree. In our opinion, the power ,of <ORG> to institute proceedings for contempt and punish where necessary is a special jurisdiction which is,inherent in all courts of record section 1(2) of the Code expressly excludes special jurisdictions from its scope. The section runs-

"In the absence of any specific provision to the contrary, nothing herein contained shall affect any special...... law now in force or any special jurisdiction or power conferred by I any other law for the time be' in force."

The term "special jurisdiction' is not defined in the Criminal Procedure Code but the words "special law" are defined in section 41 of the Indian Penal Code to mean "a law applicable to a particular subject." In the absence of any specific definition in the Criminal Procedure Code we think that that brings out the ordinary and natural meaning of the words "special jurisdiction" and covers the present case. Contempt is a special subject and the jurisdiction is conferred 'by a special set of laws peculiar to courts of record.

This has long been the view in India. In 1867 <NAME> laid down the rule quite broadly in these words in In re <NAME> and <NAME> (1):

"there can be no doubt that every court of record has the power of summarily punishing for contempt." It is true the same learned Judge sitting in <ORG> in 1883 traced the origin of the power in the case I of the Calcutta, Bombay and Madras <ORG> to the common law of England [see <NAME> v. Chief justice and Judges of <ORG>)], but it is evident from other decisions of the judicial Committee that the jurisdiction is broader based than that. But however that may be, Sir <NAME> made it clear that the words "any other law" in section 5 of the Criminal Procedure Code do not cover contempt of a kind punishable summarily by the three <ORG>.

Now it is relevant to note in this connection that whatever the origin of the jurisdiction may be in the (1) (1867) 8 W.R. Cr. 32 at 33.

(2) (1883) 10 I.A. 171 at 179.

case of those three courts, the Charter of 1774 which established <ORG>, while providing in clause 4 that its Judges should have the same jurisdiction as <ORG> <ORG> in England, also expressly stated in clause 21 that the court is empowered to punish for contempt. When <ORG> was abolished the High Courts Act of 1861 continued those powers to <ORG> by sections 9 and 11 and clause 2 of the Letters Patent of the year 1865 continued them as courts of record. Despite this, in 1883 <ORG> did not trace this particular jurisdiction of <ORG> to clause 15 of its Charter but to the common law of England. But what is the common law ? It is simply this: that the jurisdiction to punish for contempt is something inherent in every court of record. <NAME> collected a number of English authorities at pages 728 to 730 of his judgment in In re Abdul Hasan Jauhar (I and concluded thus:

"These leading cases unmistakably show that the power of <ORG> in England to deal with the contempt of inferior courts is based not so much on its historical foundation as on <ORG>'s inherent jurisdiction." Apparently, because of this <ORG> held in 1853 that <ORG> at Sierre Leone also had jurisdiction to punish for contempt, not because that court had inherited the jurisdiction of the English courts but because it was a court of record. Their Lordships' language was this:

"In this country every court of record is the sole and exclusive judge of what amounts to a contempt of court......... and unless there exists a difference in the constitution of <ORG> at Sierre Leone the same power must be conceded to be inherent in that court...... we are of opinion that it is a court of record and that the law must be considered the same there as in this country."

(1) (1926) I.L.R. 48 All. 711 .

The 1884 edition of Belchamber's Practice of the Civil Courts also says at 'page 241 that-

"Every superior court of record, whether in 'the United Kingdom, or in the colonial' possessions or dependencies of the <ORG> has inherent' power to punish contempts, without its precincts, as well as in facie curiae......................

So also 7 Halsbury's Laws of England (<ORG> edition) page 2-

"The superior courts have an inherent jurisdiction to punish criminal contempt etc.............."

"But reverting to the developments in India. <ORG> was established in 1866 under the High Courts Act of 1861 and was constituted a court of record. In 1906 <ORG> remarked at page 108 of its judgment in In the matter of <NAME> (1) that-

"There is also no doubt that the publication of this libel constituted a contempt of court which might have been dealt with by <ORG> in a summary manner by fine or imprisonment or both."

After this came the Government of India Act, 1915. Section 106 continued to all <ORG> then in existence the same jurisdiction, powers and authority as they had at the commencement of that Act, and section 113 empowered the establishment of new <ORG> by Letters Patent with authority to vest in them the same jurisdiction, powers and authority "as are vested in or may be conferred on any <ORG> existing at the commencement of this Act."

<ORG> was established by Letters Patent in 1919 and was duly constituted a court of record. In the year 1925 <ORG> of that court punished a contempt of itself in Crown v. <NAME>).

After this the question was again agitated in <ORG> in 1926 but this time in respect of a contempt of a subordinate court. <ORG> was convened and the learned Judges reaffirmed their (1) (1907) I.L.R. 29 All. 95.

(2) 1925 I.L.R. 6 Lah. 528 (F.B).

powers: In re <NAME> (1). Two of the Judges based broadly on the inherent jurisdiction of a court of record. <NAME>, said at page 727 that "it is not the territorial limits of the jurisdiction of <ORG>" [of Bengal] "but the very nature of its constitution that is of importance." <NAME> however preferred to ground on the fact that that court "had conferred on it, by the statute and the Letters Patent creating it, similar powers to those conferred on <ORG>," and at page 733 went on to say that that applied "to every other <ORG> in this country."

In the presence of all this history the Contempt of Courts Act , 1926, was passed. The heading states that the Act is "to define and limit the powers of certain courts in Punishing contempts of courts." The preamble states- "Whereas doubts have arisen as to the powers of <ORG> to punish contempts of courts and whereas it is expedient to resolve these doubts and to define and limit the powers exercisable by <ORG> and <ORG> in punishing contempts of court : It is hereby enacted as follows Section 2 says :-

"Subject to the provisions of sub-section (3), <ORG> established by Letters Patent shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of contempts of courts subordinate to them as they have and exercise in respect of contempts of themselves."

This recognises an existing jurisdiction in all <ORG> to punish for contempts of themselves, and the only limitation placed on those powers is the amount of punishment which they could thereafter inflict. It is to be noted that the Act draws no distinction between one <ORG> and another though it does distinguish between <ORG> and Chief Courts;- also, as the (1) (1926) I.L.R. 48 All. 711.

Act is intended to remove doubts about the, High Coures powers it is evident that it would have conferred those powers had there been any doubt about <ORG> power to commit for contempts of themselves. The only doubt with which the Act deals is the doubt whether <ORG> could punish for a contempt of a court subordinate to it. That doubt the Act removed. It also limited the amount of punishment which <ORG> could inflict. Now this recognises an existing power in all Letters Patent- High Courts to punish and as <ORG> other than <ORG> could not have derived this power from the common law, it is evident that the power must have been inherent in themselves because they were courts of record.

In 1927 another Full Bench of <ORG> consisting of five judges re-examined the position: In the matter of Muslim Outlook, Lahore(' They reaffirmed their earlier decision in <ORG> <NAME> (2) and held that this jurisdiction is inherent in <ORG> and not merely in the three <ORG>.

In 1928 a Full Bench of <ORG> examined the matter [In re <NAME>)] and then committed for contempt. In 1936 <ORG> of <ORG> [Harkishen Lai v. The Crown(4)] followed the earlier Lahore decisions. <ORG> decided a case of contempt from Trinidad in 1936 [ <CITATION> for Trinidad & Tobago(5)] and held that it was a quasicriminal offence and in the course of their judgement they referred to an earlier decision of the Be from Sierre Leone to which we have already referred [<NAME> v. The Justices of Sierre Leone(6)]. In the Trinidad case their Lordships did not accept the extreme proposition that every court of record is the (1) A.I.R. 1927 Lah. 610.

(2) (1925) I.L.R. 6 Lah. 528.

(3) (1929) I.L.R. 8 Pat. 323.

(4) (1937) I.L.R. 18 Lab. 69.

(5) [1936] A.C. 322.

(6) 8 Moo. P.C. 47.

sole and exclusive judge of what amounts,to a contempt because of their decision in <NAME> v. the Chief Justice and Judges of <ORG>), but they did not doubt the soundness of the decision otherwise. In 1942 <ORG> examined the position in a Full Bench for the third time and reached the same conclusion: In the matter of <NAME>). This time they pointed out that the Sind, Rangoon and Nagpur High Courts had also punished summarily for contempts. They also referred to two American decisions where, though the power was said to have been derived from the common law, it was said that.

"The power to fine and imprison for contempt from the earliest history of jurisprudence has been regarded as a necessary incident and attribute of a court without which it could no more exist than without a judge............ Finally, in <NAME> v. Emperor(3 ) <ORG> said that "this summary power of punishing for contempt.......... is a power which a court must of necessity possess."

We have omitted references to the Bombay and Madras decisions after 1883 because the judicial Committee settled the powers of the three <ORG>. What we are at pains to show is that, apart from the <ORG>, practically every other <ORG> in India has exercised the jurisdiction and where its authority has been challenged each has held that it is a jurisdiction inherent in a court of record from the very nature of the court itself. This is important when we come to construe the later legislation because by this time it Was judicially accepted throughout India that the jurisdiction was a special one inherent in the very nature of the court. The only discordant note that we know of was struck in <CITATION> (4) where a Division Bench of the Allahabad (1) (1883) 10 I.A. 171.

(2) (1942) I.L.R. 23 Lah. 411.

(3) A.I.R. 1945 P.C. 134 at 136.

(4) A.I.R. 1945 All at 4.

<ORG> held that after the Act of 1926 the offence of contempt was punishable under an Indian Penal statute and so the Code of Criminal Procedure applied because of the words "any other law" in section 5 . In our opinion, this is wrong because the Act of 1926 does not confer any jurisdiction and does not create the offence. It merely limits the amount of the punishment which can be given and removes a certain doubt. Accordingly, the jurisdiction to initiate the proceedings and take seisin of the matter is as before.

<ORG> was established in 1948 and section 33 of the Ordinance which established it recites that it shall be a court of record and that it shall have 'power to punish for contempt. It will be remembered that the Charter of 1774 which established <ORG> for Bengal said the same thing of that court and yet <ORG> did not trace its powers about contempt from the Charter but from the common law. In the same way, the law by this time was so well settled in matters of contempt that the words "court of record" and "power to punish for contempt" had acquired a special meaning. Consequently, it is immaterial whether in 1948 the power of <ORG> was derived from section 33 or was inherent in the nature of the court because whichever it is the jurisdiction is a special one, and had the legislature desired to take it away and confer another kind of jurisdiction it would have been necessary to use express words in, view of the case law which by then had become well established. In 1950 came the Constitution of India and article 215 states that-

"<ORG> shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself."

Here again, whether this is a fresh, conferral of power or a continuation of existing powers hardly matters because whichever way it is viewed the jurisdiction is a special one and so is outside the purview of the Criminal Procedure Code .

The Contempt of Courts Act , 1926, was repealed by Act XXXII of 1952. Section 3 of the new Act is similar to section 2 of the old and, far from conferring a new jurisdiction, assumes, as did the old Act, the existence of a right to punish for contempt in <ORG> and further assumes the existence of a special practice and procedure, for it says that <ORG> shall exercise the same jurisdiction, powers and authority "in accordance with the same procedure and practice." These words are new and would be inappropriate if the Criminal Procedure Code applied. In any case, so far as contempt of <ORG> itself is concerned, as distinct from one of a subordinate court, the Constitution vests these rights in <ORG>, so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. It is true section 5 expands the ambit of the authority beyond what was till then considered to be possible but it does not confer a new jurisdiction. It merely widens the scope of an existing jurisdiction of a very special kind.

On reflection it will be apparent that the Code could not be called in aid in such cases, for if the Code applies it must apply in its entirety and in that event how could such proceedings be instituted ? The maximum punishment is now limited to six month's simple imprisonment or a fine of Rs. 2,000 or both because of the 1952 Act. Therefore, under the second schedule to the Code contempt would be triable by a Magistrate and not by <ORG> and the procedure would have to be a summons procedure. That would take away the right of <ORG> to deal with the matter summarily and punish, a right which was well established by the case law up to 1945 and which no subsequent legislation has attempted to remove. So also section 556 could not apply, nor would the rule which prohibits a judge from importing his own knowledge of the facts into the case. We hold therefore that the Code of Criminal Procedure does not apply in matters of contempt triable by <ORG>. <ORG> can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by <ORG> in In re Pollard(1) and was followed in India and in Burma in In re Vallabhdas(2) and <NAME> v. King Emperor(3) In our view that is still the law. If the Code of Criminal Procedure does not apply, then there is no other power which we can exercise. The Constitution gives <ORG> the right and the power to punish a contempt of itself. If we were to order a transfer to another court in this case we would be depriving <ORG> of the right which is so vested, in it. We have no more power to do that than has a legislature. As for transfer from one judge to another, there again there is no original jurisdiction which we can exercise. It is not a fundamental right and so article 32 has no application and there is no other law to which recourse can be had. This petition is therefore incompetent and must be dismissed.

We wish however to add that though we have no power to order a transfer in an original petition of this kind we consider it desirable on general principles of justice that a judge who has been personally attacked should not as far as possible hear a contempt matter which, to that extent, concerns him personal1y It is otherwise when the attack is not directed against him personally. We do not lay down any general rule because there may be cases where that is impossible, as for example in a court where there is only one judge or two and both are attacked. Other cases may also arise where it is more convenient and proper for the judge to deal with the matter himself, as for example in a contempt in facie curioe. All we say is that this must be left to the good sense of the judges themselves who, we are confident, will (1) L.R. 2 P.C. 106 at 120.

(2) I.L.R. 27 Bom. 394 at 399.

(3) I.L.R. 4 Rang. 257 at 259-261.

comport, themselves with that dispassionate dignity and decorum which befits their high office and will bear in mind the oft quoted maxim that justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person' who should, always be given, as far as that is humanly possible,, A feeling of confidence that he will receive a fair, just and impartial trial by judges who have no personal interest or concern in his case.

Petition dismissed.

Agent for the petitioner : <NAME>. Agent for the respondent <NAME>.


<NAME>, J.

1. This is areference under Section 256(1) of the I.T. Act, 1961, hereafter "the Act". <ORG>, <ORG>', Delhi, hereafter "the <ORG>", has referred the following question for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the assessment framed by the Income-tax Officer is barred by limitation as prescribed under Section 153 of the Income-tax Act, 1961 ?"

2. The assessment year involved is 1971-72, the accounting period ended March 31, 1971. Dr. <NAME>, the assessee, is a qualified eye specialist and has been in practice since long. For the assessment year 1971-72, the assessee shouldhave filed his return under Section 139(1) of the Act by June 30, 1971. No notice was issued to him under Section 139(2) of the Act. He filed a return on December 21, 1971, which would be a return under Section 139(4) of the Act. Thereafter, he filed a revised return on March 23, 1974. The assessment was completed on January 23, 1975, and as against the disclosed income of Rs. 9,525 in the original return and Rs. 11,225 in the revised return, the total income was computed at Rs. 30,130.

3. Aggrieved, the assessee filed an appeal and apart from challenging the assessment order on merits raised a legal plea. That plea was that the assessment made by the <ORG> on January 29, 1975, was barred by limitation. The assessment for this year should have been completed by March 31, 1974. According to the assessee since the return has been filed under Section 139(4) it could not be revised under Sub-section (5) of Section 139 and that return did not extend the period for making the assessment. Therefore, the assessment was beyond time. The <ORG> did not accept this contention on the view that under Section 139(5) any person having furnished a return can file a revised return at any time before the assessment is made in case he discovers any omission or any wrong statement therein. The time for making the assessment, therefore, stood extended by one year and so the assessment framed by the <ORG> on January 2, 1975, was well within time.

4. In the quantum of income some relief was allowed. Still aggrieved, the assessee took up the matter in further appeal before the <ORG>. The assessee again urged before the <ORG> that the return filed under Section 139(4) cannot be revised under Sub-section (5) of Section 139 and hence the revised return filed by him did not extend the period for completing the assessment and the assessment framed on January 29, 1975, was thus beyond the time provided under Section 153 . The <ORG>, for the reasons given in the order passed by the Delhi Bench 'B' in I.T.A. No. 969 (Del)/73-74 decided on December 19, 1974, repelled this contention and held that the assessment order was valid in law. Now, at the instance of the assessee, the question mentioned above has been referred to this court.

5. It was submitted before us on behalf of the assessee by his learned counsel, Sri <NAME>, that admittedly the return filed by the assessee in this case was a return under Section 139(4) , that Section 139(5) does not give any right to the assessee to revise the return filed under Section 139(4) and that being so, the revised return filed by the assessee could not extend the period of limitation for completing the assessment. The assessment for this year in the normal course should have been completed by March 31, 1974. A revised return, as noted above, was filed on March 23, 1974, and the assessment was completed on January 23, 1975. In case it is accepted that a return filed under Section 139(4) cannot be revised under Section 139(5) , then this assessment was made beyond the period of limitation prescribed under Section 153(1)(a)(iii) of the Act. After hearing counsel for parties we find that there is considerable merit in this contention.

6. We may first set out the relevant provisions. Section 139 provides for a return of income. It consists of eight sub-sections. Under Sub-section (1) every person is bound to furnish voluntarily a return of his total income or the total income of any other person in respect of which he is assessable if such income during the previous year, exceeded the maximum amount which is not chargeable to income-tax. An exception to this mandatory provision for filing the return is made in the case of those salaried employees who fulfil the conditions of Sub-section (1A). Under Sub-section (2), the <ORG> may, in any case, serve a notice on an assessee or representative assessee whose total income, in the <ORG>'s opinion, which is final on the point, renders him liable to income-tax requiring him to furnish within thirty days such a return. Such notice may be issued at any time in the course of the assessment year. If a notice is not issued in the course of the assessment year and the assessee does not voluntarily submit a return, and the income is not assessed in the normal course under Section 142 , the <ORG> must proceed under Sections 147 and 148 if he wants to assess such income in the subsequent years.

7. Under Sub-section (3) if any person who has not been served with a notice under Sub-section (2), has sustained a loss in any previous year under the head "Profits and gains of business or profession" or under the head "Capital gains", and claims that the loss or any part thereof should be carried forward under Sections 72(1) , 73(2) , 74(1) or 74A(3), he may furnish, within the time allowed under Sub-section (1) or within such further time, which on an application made in the prescribed manner, the ITO may, in his discretion, allow, a return of loss in the prescribed form and verified in the prescribed manner. Then comes Sub-section (4) which is in the following terms :

"(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 s'ub-section (8) shall apply in every such case ;

(b) The period referred to in Clause (a) shall be-

(i) where the return relates to a previous year relevant to any assessment year commencing on or before the 1st day of April, 1967, four years from the end of such assessment year ;

(ii) where the return relates to a previous year relevant to the assessment year commencing on the 1st day of April, 1968, three years from the end of the assessment year ;

(iii) where the return relates to a previous year relevant to any other assessment year, two years from the end of such assessment year."

8. In the present case, it would be Sub-clause (iii) of Clause (b) which would be applicable and the return under this provision could be filed before 31st of March, 1974, of course, before the assessment had been made.

9. Sub-section (4) provides for the filing of a return of income of a charitable or religious trust. Then comes Sub-section (5) which reads :

"(5) 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."

10. Under this sub-section a revised return can be furnished at any time before the assessment is made. The benefit can be claimed only if any bona fide mistake has occurred in the original return. The benefit cannot be claimed by a person who has made a false return knowing it to be false. This sub-section speaks of a return filed under Sub-section (1) or Sub-section (2) and not a retnrn filed under Sub-section (4) and the question that falls for our consideration is as to whether a revised return under this provision can be filed in case where a return has not been filed under Sub-section (1) or (2) but has been filed under Sub-section (4).

11. It is not necessary to refer to Sub-sections (6A) and (7). Under Sub-section (8) interest is payable if the return is not furnished at all or is not furnished in time under Sub-section (1) even though it is furnished within the time specified in a notice under Sub-section (2) or the time prescribed under Sub-section (4). What we propose to show is that this sub-section specifically makes a mention of the return filed under Sub-section (4).

12. We may also refer to Section 153 which provides for a time-limit for the completion of the assessment and reassessment. Sub-section (1) of this section which is relevant for our purposes is in the following terms:

"153. (1) 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 first 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 the filing of a return or a revised return under Sub-section (4) or Sub-section (5) of Section 139 , whichever is latest."

13. On a reading of the provisions extracted above it would appear that Section 139 broadly contemplates the filing of three returns : one under Sub-section (1), the other under Sub-section (2) and the third one under Sub-section (4). The returns contemplated under Sub-sections (1A) and (3) are to be treated as returns under Sub-section (1) and so also the return required under Sub-section (4A). The returns required to be filed under Sub-sections (1) and (2) are obligatory returns while the return which an assessee may file under Sub-section (4) is purely a voluntary return. It is an enabling or permissive provision which empowers an assessee to file a return at any time before the completion of the assessment with a view to avoid the penalty of an ex parte assessment. A return required under Sub-section (1) is also a voluntary return but it is not of the same type as a return which an assessee can file under Sub-section (4) in the sense that it is obligatory on every person to furnish voluntarily a return of his total income or the total income of any other person in respect of which he is assessable, if such income during the previous year, bona fide calculated by him exceeded the maximum amount which is not chargeable to income-tax. Similarly, under Sub-section (2) when a notice is served on an assessee or a representative assessee whose total income in the opinion of the <ORG> renders him liable to income-tax, such an assessee is bound to furnish a return within thirty days of the notice or within such time which the <ORG> may extend within his discretion. Failure to comply with these provisions renders an assessee liable to penalty under Section 271(1)(a) and prosecution under Section 276CC of the Act whereas no such penalty is leviable in regard to a return filed under Sub-section (4). For charging of interest under Sub-section (8) there is a specific mention of returns filed under these three separate provisions. In other words, an assessee filing a return under Sub-section (4) is equally liable to pay interest as is chargeable in respect of returns filed in Sub-sections (1) and (2). The <ORG> is, thus, conscious of the three different types of returns and since Sub-section (5) does not give a right to an assessee to revise a return filed under Sub-section (4), we cannot intend such a provision therein by equating the return filed under Sub-section (4) with a return filed under Sub-section (1).

14. Now, we can consider this question from yet another aspect and it is that different time-limits for completion of assessment have been provided in respect of cases where a return has been filed under Sub-section (4) or a revised return has been filed under Sub-section (5). Sub-section (5) does not provide for any separate category of return. It only gives a right to an assessee to revise the return filed under Sub-section (1) or Sub-section (2). When a revised return is filed the original return stands supplanted or withdrawn. In other words, if the original return is under Sub-section (1) and a revised return is filed, then the revised return would be a return under Sub-section (1) and so will be the position if the original return was under Sub-section (2). In our opinion, therefore, the return provided for under Sub-section (4) stands in a category different from those provided in Sub-section (1) or Sub-section (2) and such a return cannot be revised under Sub-section (5) because that sub-section does not say so. That being the position, where a return is filed under Sub-section (4), the limitation for completing the assessment is 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. The revised return filed on March 23, 1974, was an invalid return and could not extend the period for completing the assessment.

15. We are fortified in the view which we have taken above from the decisions of our own court and some other courts. <CITATION> .  70 ITR 796 (All), almost similar questions had come up for consideration. In that case on October 13, 1961, the respondent-assessee filed a return under Sub-section (3) of Section 22 of the Indian I.T. Act, 1922, with respect to income for the assessment years 1959-60 and 1960-61. The same day, the <ORG> issued a notice to the assessee under Section 22(4) . The assessee having failed to comply with the same, the <ORG> passed an order under Section 23(4) and raised a demand. The assessee challenged that assessment order by way of a writ petition. It was allowed by a learned single judge and the matter came up before <ORG> by way of special appeal. The question raised in the appeal was "whether the notice under Section 22(4) was valid, and whether action could be taken under Section 23(4) ". In other words, whether a return filed under Section 23(3) can be treated as a return under Section 22 for the purpose of Section 22(4) of the Act. Referring to the plan of Section 22 it was observed (p. 799 of 70 ITR) :

"Under Sub-section (1), a person has to furnish a return of income within a certain period in pursuance of the general notice. Under subsection (2), an individual assessee has to furnish a return within the prescribed period in pursuance of a separate notice issued to him. If a person fails to fake action under either of these two provisions, he may furnish a return as provided under Sub-section (3). One of the situations mentioned in Sub-section (3)is where a return has been filed under Sub-section (1) and it is found that that return is incomplete. In such a case the person may furnish a supplementary return. It is difficult to accept the contention that a supplementary return is also under Sub-section (1). The supplementary return is clearly under Sub-section (3) of Section 22 . The plan of Section 22 suggests that returns may be filed under three -separate provisions contained under Section 22 of the Act. There should be no difficulty in treating returns filed under Sub-section (3) as a distinct class."

16. On this view, since Sub-section (4) of Section 22 makes no reference to the returns filed under Sub-section (3), the notice issued under Section 22(4) was held to be invalid. In the Act of 1922, Section 28 refers to Sub-sections (1) and (2) of Section 22 , but makes no reference to Sub-section (3) of the said section. The Bench repelled the argument of the revenue that Section 28 suggests that a return filed under Sub-section (3) of Section 22 is covered by Section 28 . It was observed that the returns to be furnished under Sub-sections (1) and (2) are obligatory. On the other hand, the return furnished under Sub-section (3) is voluntary, and that being so, "the <ORG> rightly decided that there should be penalty for non-compliance with the requirements of Sub-sections (1) and Section (2) but there is no need for prescribing a penalty for failure to furnish a voluntary statement under Sub-section (3) of Section 22 ".

17. Our attention was invited to a Full Bench decision of our court rendered in <CITATION>  113 ITR 830. The question under consideration was whether penalty under Section 271(1)(a) of the Act could be levied in respect of a return filed under Section 139(4) . The answer was given in the negative. It was ruled that Section 139 lays down three periods of limitation for filing a return. A return may be filed within the time allowed under Sub-section (1) or if a notice has been issued by the <ORG> under Sub-section (2) within the time allowed under it and, thirdly, under Sub-section (4) (as it stood before its amendment by Act 19 of 1968) within four years from the end of the assessment year and before the assessment order is passed. Sub-section (1) and (2) of Section 139 provide a definite date up to which alone a return can be filed while Sub-section (4) gives to the assessee a locus pene-tentiae. He may file a return at any time before the assessment has been made and before the expiry of four years. Even though the assessee may have defaulted in filing the return within the time prescribed by Sub-sections (1) and (2), yet if he files the return within the time-limit mentioned under Sub-section (4), the return is valid and is bound to be taken into consideration in making an assessment.

18. There is a decision of <ORG> as well which is directly on all fours with the present case. <CITATION>  129 ITR 379, for the assessment year 1960-61, the assessee filed a return on March 30, 1965, and a revised return on March 28, 1966. The <ORG> made an assessment treating the revised return filed on March 28, 1966, as invalid in law as the return filed on March 30, 1965, had not been filed either under Sub-section (1) or Sub-section (2) of Section 139 of the Act. On appeal, the assessee claimed that the return filed on March 28, 1966, was a valid return. This contention found favour with the appellate authority and the assessment was set aside and the case was remanded for completing the assessment afresh taking note of the revised return. The assessee preferred a further appeal contending that the <ORG> ought to have annulled the assessment and not set it aside for being redone. That appeal was dismissed by the <ORG>. On a reference, it was held by <ORG> that the return filed on March 30, 1965, could be treated only as a return filed by the assesses under Section 139(4) of the Act. Sub-section (5) of Section 139 does not refer to Sub-section (4) and, therefore, does not entitle an assessee to rectify or revise a return filed under Section 139(4) . On that view, the revised return filed on March 28, 1966, was held invalid in law.

19. Learned counsel for the revenue, however, placed reliance on the decision of <ORG> in <CITATION> .  77 ITR 518 (SC) and a decision of this court in <CITATION>  134 ITR 352. In <ORG>, the assessee-company had filed voluntary returns showing losses from business for the assessment years 1953-54 and 1954-55 in January, 1956. The <ORG> took the view that as the returns had not been filed within the time prescribed under Sub-section (1) of Section 22 of the 1922 Act, they had not been validly filed under Section 22(2A) of the Act and, therefore, the assessee could not claim that the losses should be determined and carried forward. <ORG> took a contrary view and held that even if the return was filed beyond the period prescribed by Section 22(1) and disclosed loss, the <ORG> was bound to determine the loss so that it could be carried forward to the following year. That decision was affirmed by <ORG>. It was ruled (p. 527) :

" Section 22(2A) is merely a procedural provision and it also provides that once a return has been furnished in accordance therewith, all the provisions of the Act become applicable as if it were a return under subsection (1). That would attract Section 22(3) and, therefore, a voluntary return can be filed even after the period mentioned in Sub-section (2A) has expired so long as the assessment has not taken place."

20. We do not think that according to this decision a return filed under Section 139(4) can be equated with a return filed under Sub-section (1) or Sub-section (2). In <ORG> case  77 ITR 518 (SC), the court was considering Section 22(2A) of the 1922 Act which was a procedural section. Section 24(2) was the substantive section and granted an unqualified right of set-off and thus the view taken was that the words used in Section 22(2A) should not be given a narrow and restricted meaning confining them only to returns filed within the time mentioned in Sub-section (1). The case is thus distinguishable. It has been explained by <ORG> in <NAME>'s case  129 ITR 379, as also by our <ORG> in <ORG> case  113 ITR 830 ; some other <ORG> also have explained it and we respectfully agree with the reasons mentioned in those decisions. In our opinion, therefore, <ORG> case  77 ITR 518 (SC), is not an authority on the controversy raised in the instant case.

21. In <NAME> [1982] 134 ITR 352 (All), the question which came up for consideration was whether the second revised return was a valid return under the provisions of Sub-section (5) of Section 139 and, further, whether it could extend the period of limitation for completing the assessment. The answer given was in the affirmative. In that case, the original return had been filed under Sub-section (1). Thereafter, it was revised under Sub-section (5). A second revised return was filed. The question was whether a second revised return could be filed under Sub-section (5). It was held that the word "therein" occurring in Sub-section (5) indicates that a revised return may be furnished at any time before the assessment is made by a person, who has furnished the return under Sub-section (1) or Sub-section (2) and once a revised return has been filed the original return is supplanted by the revised return. For this view reliance was placed on <CITATION>  110 ITR 419 ( <CITATION>  90 ITR 236 (All). It was further held that there was no difficulty in holding that a second revised return can be filed under Sub-section (5) correcting omissions or wrong statements made in the first revised return, for the first revised return filed under Sub-section (5) would in law be a return under Sub-section (1) also. The result of filing a second revised return would be to extend the period of limitation for purposes of Section 153(1)(c) . In taking this view the Bench was mindful of the prevalent practice of filing more than one revised return which the department has been accepting consistently. According to the learned standing counsel, if the assessee's contention is accepted, then this decision would become wrong because Sub-section (5) does not say that a revised return filed under this section can be further revised. The contention is misconceived because, as noted above, Sub-section (5) provides for furnishing a revised return in a case where the return has been furnished under Sub-section (1) or Sub-section (2). When such a return is revised, the revised return takes the place of the original return filed under either of these two sub-sections. The revised return itself becomes a return under Sub-section (1) or Sub-section (2), as the case may be. In case there is any omission or wrong statement in such original return, it can surely be corrected by a subsequent revised return if filed before the assessment is made. This decision does not support the revenue in its contention that a return filed under Sub-section (4) should be treated as a return filed under Sub-section (1) and thus can be revised under Sub-section (5).

22. In our opinion, therefore, the revised return filed on March 23, 1974 was invalid. It would not extend the period of limitation for making the assessment and the assessment made on January 23, 1975, being made beyond the period of limitation, was invalid in law.

23. We, therefore, answer the question in the affirmative, in favour of the assessee and against the department. The assessee is entitled to costs which we assess at Rs. 250.