JUDGMENT Paripoornan, J 1. As directed by this Court in OP No. 1974 of 1978, the Income Tax Appellate Tribunal has referred the following question of law, for the decision of this Court: "Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the assessment is not barred by limitation?'' 2. The applicant is an assessee to income tax. The assessment year in question is 1972-73. The status of the assessee is "individual". He filed a voluntary return on 10th May 1974. It was one under S.139(4) of the Act He filed a revised return on 11th March 1975. The assessment was completed on 6th March 1976 (Annexure A). It is stated that the order was served on the assessee on 28th August, 1976. The order of assessment, dated 6th March 1976 determined the total income assessable at Rs. 83,960 and levied a tax of Rs. 55,772 inclusive of interest. In the appeal, the assessee/applicant contended that the assessment is barred by limitation, in terms of S.153(1)(c) of the Income Tax Act as it should have been completed within the expiry of one year from the date of filing the return, i.e., before 10th May 1975 and the return filed on 11th March, 1975 was an invalid one and should be ignored. The Appellate Tribunal held that the assessee represented before the Income Tax Officer that the return filed on 11th March 1975, is a revised return and received some benefits. Thereafter, it is not possible for the assessee to go back on his earlier representation and contend that what was filed is not a revised return at all and that it should be ignored. He is estopped from contending so. The Appellate Tribunal went further and held that even on the merits, there is no merit in the plea. The voluntary return filed, in this case, under S.139(4) of the Act is really a return filed within the extended time limit and the assessee has really complied with the provisions of either under S.139(1) or under S.139(2) of the Act, and S.139(5) enables a revised return to be filed in cases where the return under S.139(1) or 139(2) is filed. It includes the returns filed in compliance with either of these two sub-sections, under the extended time limit of S.139(4). It includes the returns filed in compliance with either of these two sub-sections, under the extended time limit of S.139(4). What the assessee filed was a revised return within the extended time limit and once this is accepted, the extended time of one year from the date of filing of the revised return (revised return filed on 11th March 1975), is available to the department (till 11th March 1976). In this view of the matter, the plea of limitation, urged by the assessee, was overruled. The assessee filed an application under S.256(1) of the Income Tax Act to refer the question of law, mentioned herein above, for the decision of this Court. It was rejected. It is, thereafter, as directed by this Court, the above question of law has been referred by the Appellate Tribunal, for the decision of this Court. 3. We heard counsel for the petitioner/applicant, M/s P. G. K. Wariyar and K. B. Menon, as also counsel for the revenue, Mr. P. K. R. Menon. Before us, counsel for the assessee urged that the decision of the Appellate Tribunal, negativing the plea of limitation, is erroneous in law. It was submitted that for the assessment year concerned, 1972-73, the assessee did not file the return in pursuance to S.139(1) or 139(2) of the Income Tax Act. The return filed on 10th May 1974 is admittedly one filed under S.139(4) of the Act. Under S.139(5) of the Act, a revised return can be filed only in cases where the return is filed under S.139(1) or 139(2) of the Act. Section 139(5) of the Act does not permit a revised return to be filed in cases where the return is filed under S.139(4) of the Act. So, the return filed on 11th March 1975 cannot be a revised return under S.139(5) of the Act. It is invalid. It has no legal consequences. It should be ignored. So, it cannot be relied on for the purpose of getting the extended period of limitation under S.153(1)(c) of the Act. In this case, the assessment should have been made within two years from the end of the assessment year as provided by S.153(1)(a)(iii) of the Act, i.e., on or before 31st March 1975 or at least within one year from the date of filing the return - within one year from 10th May 1974 under S.153(1)(c) of the Act. In this case, the assessment should have been made within two years from the end of the assessment year as provided by S.153(1)(a)(iii) of the Act, i.e., on or before 31st March 1975 or at least within one year from the date of filing the return - within one year from 10th May 1974 under S.153(1)(c) of the Act. The order of assessment, dated 6th March 1976 is patently barred. The assessee's counsel went to the extreme extent of submitting that even if the assessment order is dated 6th March 1976, it is effective and valid only when communicated or served on the assessee. That was done only on 28th August 1976. If that is considered to be the effective date, when the order of assessment is made for the purpose of S.153(1) of the Act, it is more than two years from the end of the assessment year under S.153(1)(a)(iii), of the Act and also one year beyond the date of the return and also the revised return and so even the extended period under S.153(1)(c) of the Act will not be available at all. Counsel for the revenue submitted that second return filed on 11th March 1975 is an additional or the final return and that it will be one filed under S.139(4) of the Act and so the assessment made in this case, within one year from the date of the said final return, is competent and valid under S.153(1)(c) of the Act. In the alternative, it was contended that the Income Tax Officer, while making the assessment, referred the case to the IAC for penalty under S.271(1)(c) of the Act and so the period of 8 years from the end of the assessment year in which the income was first assessable under S.153(1)(b) will be available. In this view of the matter, the assessment is not barred. The plea of limitation is without basis. 4. Having heard the rival contentions of the parties, we are of the view that the plea of the assessee should prevail. Before adjudicating the rival contentions, raised before us, it will be useful to quote sections 153(1) and 139(4) and (5) of the Income Tax Act. "153. The plea of limitation is without basis. 4. Having heard the rival contentions of the parties, we are of the view that the plea of the assessee should prevail. Before adjudicating the rival contentions, raised before us, it will be useful to quote sections 153(1) and 139(4) and (5) of the Income Tax Act. "153. Time limit for completion of assessments and reassessments.- (1) No order of assessment shall be made under S.143 or S.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-s.(1) of S.271; or (c) the expiry of one year from the date of the filing of a return or a revised return under sub-s.(4) or sub-s.(5) of S.139, whichever is latest." "139(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 my time before the end of the period specified in clause (b), and the provisions of sub-section (8) shall apply in every such case. x x x x x x 139(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." 5. We shall first dispose of the alternate contention of the Revenue, based on S.153(1)(b) of the Act. The Income Tax Officer did not initiate proceedings under S.271(1)(c) of the Act. We shall first dispose of the alternate contention of the Revenue, based on S.153(1)(b) of the Act. The Income Tax Officer did not initiate proceedings under S.271(1)(c) of the Act. He only referred the matter to the IAC Even so, adverting to the plea based on S.271(1)(c) of the Act, the Appellate Assistant Commissioner held in para 2 of the order that the time limit under S.153(1)(b) of the Act will apply and so the assessee's plea that the assessment is barred by limitation is untenable. The Appellate Tribunal adverted to this plea in para 3 of its order. Either the said plea was not pressed, at the time of hearing, or the Appellate Tribunal did not adjudicate that question. The Appellate Tribunal sustained the assessment only under S.153(1)(c) of the Act, on the ground that the assessment was made within one year from the date of the revised return. If the Revenue was aggrieved by the said decision of the Appellate Tribunal, in failing to hold that the assessment can be sustained under S.153(1)(b) of the Act, the Revenue should have taken proceedings for referring the said question of law for the decision of this Court. It did not do so. The Appellate Tribunal sustained the assessment only under S.153(1)(c) of the Act, on the ground that the assessment was made within one year from the date of revised return. The assessee has challenged the same in this reference. In such a proceeding, it is not open to the Revenue to sustain the assessment under S.153(1)(b) of the Act. That plea which found favour with the Appellate Assistant Commissioner was not accepted by the Appellate Tribunal. The Revenue should have taken further proceedings, by way of reference, on that aspect. The argument based on S.153(1)(b) of the Act fails. 6. The only question that arises for consideration is whether the order of assessment, dated 6th March 1976 can be sustained under S.153(1)(c) of the Act, on the ground that it was made within one year from the date of revised return. For the purpose of disposing the matter, we need not adjudicate the extreme contention raised by the assessee's counsel that the order of assessment can be said to be made only when communicated or served on the assessee on 28th August 1976. For the purpose of disposing the matter, we need not adjudicate the extreme contention raised by the assessee's counsel that the order of assessment can be said to be made only when communicated or served on the assessee on 28th August 1976. We will proceed on the basis that the order of assessment was made on 6th March 1976. It is common ground that the return filed by the assessee on 10th May 1974 is one filed under S.139(4) of the Act. It is agreed by both parties that unless the return filed on 11th March, 1975 is a valid return, the assessment made on 6th March 1976 is patently barred. Section 139(5) of the Act permits a revised return to be filed only in cases a return is filed under S.139(1) or (2) of the Act. But, counsel for the Revenue contends that it is open to the assessee to file more than one return under S.139(4) of the Act and the last of the returns will be considered to be the effective return superseding the earlier ones. In this view of the matter, it was submitted that the return filed on 11th March 1975 is the return filed under S.139(4) of the Act. 7. We are unable to accept this submission. Firstly, S.139(5) of the Act permits a later or revised return to be filed only where the return was filed under S.139(1) or (2) of the Act. Filing of a revised return is not contemplated under S.139(5) of the Act, in cases governed by S.139(4) of the Act. Any return filed subsequent to the filing of an original return is only a revised return. If the filing of such a revised return is not contemplated or permitted in the return filed under S.139(4) of the Act, it is not possible to say that any number of subsequent returns can be filed under S.139(4) of the Act itself. The statute expressly provides for filing a revised return (subsequent return) under S.139(5) of the Act, only in cases where the return is filed under S.139(1) or (2) of the Act. So, it has to be held that the Act impliedly bars or forbids the filing of a subsequent or revised return in other cases. The statute expressly provides for filing a revised return (subsequent return) under S.139(5) of the Act, only in cases where the return is filed under S.139(1) or (2) of the Act. So, it has to be held that the Act impliedly bars or forbids the filing of a subsequent or revised return in other cases. In this view there cannot be any subsequent or revised return in a case where the original return is filed under S139 (4) of the Act. Vide Ramachandra's case AIR 1975 SC 915 at p. 918, Para 25, also A. R. Antulay's case 1984 (2) SCC 500 at p. 523, Para 22. The return filed on 11th March 1975 cannot be considered to be a revised return filed under S139(5) of the Act. The return under S139 (4) of the Act having been filed on 10th May 1974, the subsequent return filed on 11th March 1975 is an invalid return. It has no legal consequences. It has to be ignored. It cannot extend the period of limitation, contemplated by section 153(1)(c) of the Act. In taking this view we are fortified by the following decisions, O. P. Malhotra v. CIT 129 ITR 379 (Delhi), Dr. S. B. Bhargava v. CIT, 136 ITR 559 Allahabad and Vimalchand v. CIT 155 ITR 593 (Raj.). Counsel for the Revenue brought to our notice the decisions of the Calcutta High Court in Mst. Zulekha Begum v. CIT 129 ITR 560 and Kumar Jagadish Chandra Sinha v. CIT 137 ITR 722 and contended that the return filed on 11th March 1975 can be taken to be a return filed under S139(4) of the Act itself. With great respect to the learned Judges, who rendered the said decisions we are unable to concur with the said view. 8. In the light of the decisions of the Delhi, Allahabad and Rajasthan High Courts, we hold that the return filed on 11th March 1975 is an invalid one. It has to be ignored. There is only one valid return in this case. That was the one filed on 10th May 1974 under S139(4) of the Act. On that basis, the assessment made on 6th March 1976, is more than one year after the filing of the return, on 10th May 1974. It is patently barred under S153(1)(c) of the Act. There is only one valid return in this case. That was the one filed on 10th May 1974 under S139(4) of the Act. On that basis, the assessment made on 6th March 1976, is more than one year after the filing of the return, on 10th May 1974. It is patently barred under S153(1)(c) of the Act. We should also high-light the fact that the language of S139(1) and (2) vis-a-vis the language of S139(4) fortifies the view taken by Delhi, Allahabad and Rajasthan High Courts. In S139(1) and (2), what is contemplated is the filing of a return and having furnished a return under sub-section (1) or (2), if any person discovers any omission, he may furnish a revised return under S139(5) of the Act. But, in S.139(4), what is permitted is that any person who has not furnished a return under S.139(1) or (2) may, before the assessment is made, furnish the return (Note the crucial words "the return" - instead of "a return"). Under 139(4) of the Act, filing of one return alone is contemplated. In this case, the return was filed on 10th May 1974. In view of S.153(1)(c) of the Act, the order of assessment made on 6th March 1976 is patently barred. In this connection, we should also bear in mind the language used in S.153(1) of the Act. It is in the nature of an injunction, stating that no order of assessment under S.143 or S.144 can be made at any time after the expiry of the period prescribed therein. It is really a fetter upon the power of the Income Tax Officer to make the assessment. It is a question of jurisdiction. [Vide, refer the decision of the Supreme Court in S. S. Gadgil v. Lal and Co. 53 ITR 231 at 239]. 9. We hold that the Income Tax Officer has no jurisdiction to pass the order of assessment, dated 6th March 1976. The assessment made on 6th March 1976 is illegal and without jurisdiction. In this view of the matter, we answer the question, referred to us, in the negative. The Tribunal was wrong in holding that the assessment is not barred by limitation. We answer the question against the Revenue and in favour of the assessee. The assessment made on 6th March 1976 is illegal and without jurisdiction. In this view of the matter, we answer the question, referred to us, in the negative. The Tribunal was wrong in holding that the assessment is not barred by limitation. We answer the question against the Revenue and in favour of the assessee. A copy of this judgment, under the seal of this Court and the signature of the Registrar, shall be forwarded to the Tribunal, as required by law.