1985 PLP 498 (PTD)

AJMAL MIAN, J.

These are three direct income-tax references under section 66(1) of the Income-tax Act, 1922, pertaining to the assessment years, 1969-70, 1968-69 and 1971-72 and raise the following questions of law: "(1) Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the Income-tax Officer was little justified in ignoring the revised return and basing the assessment on the original provisional return ?" (2) Whether on the facts and in the circumstances of the case the Tribunal even when it was not convinced about the Income-tax Officer being fully justified in ignoring the revised return and basing the assessment on the original provisional return, was justified in issuing any direction and whether having decided to issue a direction, it was justified in not setting aside the assessment and directing the Income-tax Officer to make a fresh assessment but proceeding to deal with the various specific objections re garding the several trading accounts in the various sections? (3) Whether on the facts and circumstances of the case the Income tax Officer was justified in treating the original return as a proper and valid return and basing the assessment thereon? (4) Whether on the facts and in the circumstances of the case the Income-tax Officer was required under the law to base his assess ment on the revised return, notwithstanding the facts that he considered this return to be invalid? (5) Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the assessee was entitled to file a revised return under section 22(3) of the Income tax Act? (6). Whether the scheme of the Income-tax Act contemplates the filing of any Provisional return? (7) Whether the scheme of the Income-tax Act contemplates that by filing a revised return the assessee can escape all the consequences emanating from the filing of the original return (8) Whether on the facts and circumstances of the case the Tribunal was justified in interfering with the Income-tax Officer's assessment order relating to the rejection of, and the making of the additions and disallowances, the various accounts?" In our view, the only question which is involved in the present case is question No. 5 as stated by Mr. Nasrullah Awan, learned counsel for applicant in I.T.C. Nos. 284 and 287 of 1974, and, therefore, we intend to decide the above question alone.

2. The admitted position is that the respondent assessee filed revised returns before the issuance of any notice by the Income-tax Officer for the assessment under section 22 (4) or 23 (2) of the Act. The learned Tribunal in its order has concluded as a question of fact that the omission on the part of the respondent assessee was on account of a bona fide mistake. It may be observed that under subsection (3) of section 22, it has been provided that if any person has not finished a return within the time allowed by or under subsection (1-A) or subsection (2), or having furnished a return tinder either of those subsections discovers any omission or wrong state ment therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made. In the instant case, admittedly the respondent assessee filed the revised returns even before the issuance of notice by the Income-tax Officer for making assessment of years in questions. In this view of the matter, a revised return could have been filed in the terms of the above subsection (3) of section

22. However, it was urged by Mr. A.A. Dareshani, learned counsel for the applicant department in the above I.T.R. No. 292/74 that it was deliberate act on the part of the respondent assessee not to disclose the real income by omitting certain items. In our view, the question whether there was a bona fide mistake or was it a deliberate act, was a question of fact within the com petency of the learned Income-tax Tribunal and this Court cannot sit as a Court of appeal to reverse the finding on the above question of fact. Mr. Iqbal Naim Pasha has referred to the case of India Cements Ltd. v. Commissioner of Income-tax Madras (60 I.T.R. Vol. 50) in which Indian Supreme Court observed that the High Court must accept the finding of fact recorded by the Appellate Tribunal and it is for the person who has applied for reference to challenge the same by an application under section 66 (1) of the Act. In the instant case framing any question has not challenged the finding of fact. The above case seems to support the contention of the learned counsel for the respondent assessee.

3. For the aforesaid reasons our answer to the above-quoted question No. 5 is in the affirmative. There will be no order as to costs. M.B.A. Reference answered accordingly.