KALYAN JYOTI SENGUPTA,J. ( 1 ) BY this writ petition notice under Section 148 read with Section 147 of the Income-tax Act, 1961, has been challenged. The short fact of the case is that the writ petitioner assessee could not file the returns of its income for the assessment years 1987-88 and 1988-89 for reasons beyond its control. However, subsequently on extension being granted the returns for both the aforesaid years were filed. The return for the assessment year 1987-88 showed loss in the business of the petitioner and asked for refund of the tax. This return, however, was declared to be invalid and/or non-existent as the writ petitioner did not file the claim of refund in the prescribed Form No. 30. In the affidavit-in-opposition it has been stated that the order of extension was not really granted and the letter of the income-tax official showing the extension is a forged document. ( 2 ) MR. Khaitan, the learned advocate, appearing in support of the writ petition, submits firstly that the question of invalid order of extension does not arise, as late in the month of August, 2001, certified copy of the aforesaid order of extension was obtained and it was produced before me. He submits that the impugned notice cannot be issued on the facts and circumstances of this case as the conditions for issuance of notice under sections 148 and 147 are not fulfilled. ( 3 ) THE next contention of Mr. Khaitan is that the return, which was held to be non-existent or invalid, is a valid one and the same cannot be rejected. Firstly, it is not a mandatory provision of the law that the application or statement under Form No. 30 is required to accompany the returns of income. At the highest the return may be irregular or defective, but the same cannot be rejected at the first instance and, under the law, the income-tax official is duty bound to give an opportunity to remove the irregularity before rejecting the same. In support of his submission, he has relied on a circular of the Board dated August 21, 1987, No. 493 being annexuie H to the petition. He has also relied on a decision of the learned single judge of the Punjab and Haryana High Court in Deep Chand Jain v. ITO [1984] 145 1tr 676. In support of his submission, he has relied on a circular of the Board dated August 21, 1987, No. 493 being annexuie H to the petition. He has also relied on a decision of the learned single judge of the Punjab and Haryana High Court in Deep Chand Jain v. ITO [1984] 145 1tr 676. He also submits an old decision of this court in Mohindra Mohan Sirkar v. ITO [1978] 112 ITR 47 that has held that the return cannot be held outright to be invalid. Therefore, Mr. Khaitan contends that when the very basis of issuance of the notice as aforesaid is not tenable under the law, the notice must be set aside and/or quashed. ( 4 ) MR. Som, learned senior advocate, appearing for the Revenue, while opposing this application, contends that the returns showing refund of tax must be accompanied by the declaration in Form No. 30 under the relevant rules. Unless it is done the return cannot be accepted to be a valid one. He contends when a thing is to be done in one manner under the law this should be done in that manner or not at all. So, the decision of the tax official is justified and valid and there is no reason to withdraw or cancel the said notice. ( 5 ) MR. Som further contends that under Section 139 (10) as was in vogue (now it has been repealed) a return of income, which shows the total income below the taxable limit, shall be deemed never to have been furnished. In this case, the writ petitioner though claimed refund of income-tax no application under Section 237 of the Income-tax Act read with Rule 41 was made. He contends that in the case of refund of income-tax under Rule 41 an application for refund under Chapter XIX shall be made in Form No. 30 along with the return in the prescribed form. Since such application was not made rather a loss was shown. Therefore, under Section 139 (10) of the aforesaid Act it was automatically held to be invalid. The aforesaid provision of Rule 41 read with Section 237 is mandatory. Logically since no return was furnished under the law, the Department has rightly and lawfully issued notice under Section 148 read with Section 147 of the Income-tax Act, 1961, for assessment of the income of the petitioner. The aforesaid provision of Rule 41 read with Section 237 is mandatory. Logically since no return was furnished under the law, the Department has rightly and lawfully issued notice under Section 148 read with Section 147 of the Income-tax Act, 1961, for assessment of the income of the petitioner. ( 6 ) HAVING heard the respective contention of the learned advocates it appears to me that in this case the legality and validity of the impugned notice is depending upon the legality and validity of the impugned decision of the Deputy Commissioner of Income-tax, Special Range VI, Calcutta, declaring the return for the assessment year 1987-88 not being filed under the provision of Section 139 (10) of the Income-tax Act, 1961. In the event, the aforesaid decision followed by a letter dated March 19, 1990, of the Assistant Commissioner of Income-tax, Circle (Inv.) 5- (2), Calcutta, is held to be not correct then the impugned notice under Section 147 read with Section 148 automatically falls to the ground. Mr. Som though contends that the order granting extension of time to furnish the returns is invalid and illegal which I am not prepared to accept at this stage as the Department concerned did not raise such dispute at any point of time, the concerned return was submitted and received by the Department. Mr. Khaitan contends that since the return was accepted by the concerned receiving Department, the same should have been assessed assuming there is no irregularity or any defect as the Board circular dated August 21, 1987. I am unable to accept this portion of the submission of Mr. Khaitan that as it was accepted by the receiving section the same should have been assessed, by reason of the fact that a circular of the Board cannot override and/or operate inconsistently with the provision of the law for the simple reason that the Board's circular is issued under the provision of the Income-tax Act, 1961. I am of the view that whenever such return is received it is for the Department concerned to scrutinise it and if it is found that the same is a defective one, such defect shall be asked to be cured instead of rejecting the said return as being invalid under the provisions of Section 139, Sub-sections (5) and (9) of the Act. I find, in support of this proposition, a Division Bench judgment of this court in CIT v. Rai Bahadur Bissesswarlal Motilal Malwasie Trust [1992] 195 ITR 825 cited by Mr. Khaitan which has held amongst others that under Section 139 (9), the Assessing Officer is to intimate the defects in the return to the assessee giving him an opportunity to rectify them. The Assessing Officer has power to ask the assessee to remove all defects in the return other than the defects making the return invalid. ( 7 ) IN this case the return was filed showing loss, and asking for refund but not accompanied by the necessary application in the prescribed Form No. 30. On this score this return cannot be held to be invalid. At the highest the petitioner cannot get any claim of refund. But the returns altogether cannot be held to be invalid. Therefore, the concerned Assessing Officer should have asked the petitioner to submit the necessary application for claim of refund in the prescribed form within the time stipulated under Section 139 (3) of the Income-tax Act, 1961. It is merely a removable defect as the return itself mentioned for claim of refund. ( 8 ) NOW, coming to the question as to whether without the aforesaid application in the prescribed form accompanying the return, it could be held to be invalid under Section 139 (10) (since repealed) or not. Therefore, I reproduce the relevant portion of Section 139 (10) : "notwithstanding anything contained in any other provision of this Act, a return of income which shows the total income below the maximum amount which is not chargeable to tax shall be deemed never to have been furnished. " ( 9 ) IN my view, the aforesaid Sub-section (10) of Section 139 would have been applicable in a case where the income of the assessee is below the maximum amount. It does not relate to showing loss or profit. At the relevant time the income of the assessee shown in the return was not below the maximum limit. The income was within the taxable range and that is why the claim for refund of tax was asked for. So, the aforesaid Sub-section (10) of Section 139 is not at all applicable in order to hold the return not being filed. Therefore, I accept the argument of Mr. The income was within the taxable range and that is why the claim for refund of tax was asked for. So, the aforesaid Sub-section (10) of Section 139 is not at all applicable in order to hold the return not being filed. Therefore, I accept the argument of Mr. Khaitan that the decision of the tax officials by the aforesaid impugned order under Section 139 (2) was taken on total non-application of mind and patently incorrect application of Section 139 (10) of the Act. As far as the letter dated March 14,1990, being annexure E to the writ petition is concerned the said decision was correct in law as the petitioner was supposed to furnish the application for refund in the prescribed form. But because of omission of filing such application the return could not be held to be non-existent. On receipt of the representation of the writ petitioner, the Revenue official should have given an opportunity to submit the application in the prescribed Form No. 30. When an assessee has filed a return either showing profit or loss, or asking for refund and the return shows an income of taxable limit, the Department should have proceeded with assessment. I find in support of my view a Division Bench judgment of this court cited by Mr. Khaitan in Mohin-dra Mohan Sirkar v. ITO [1978] 112 ITR 47. In this judgment, it has been held by their Lordships amongst other as follows (headnote) : "there is a distinction between the case of non-filing of a return and the case of filing an incorrect and incomplete return. An incomplete return, that is, a return which does not comply with the provisions of Section 139, may be said to be an invalid return. But the Act docs not contain any provision for the rejection of an invalid return ; on the contrary, under Section 143 (3), a duty is cast on the Income-tax Officer to assess the total income or loss of the assessee after serving on him a notice under Section 143 (2) and after hearing such evidence as the assessee may produce or the Income-tax Officer may gather. " ( 10 ) THEREFORE, I am of the view that this impugned decision of the Revenue official does not stand to scrutiny and the same is bound to be quashed and set aside. Accordingly, both the decisions are set aside. " ( 10 ) THEREFORE, I am of the view that this impugned decision of the Revenue official does not stand to scrutiny and the same is bound to be quashed and set aside. Accordingly, both the decisions are set aside. The Revenue official shall proceed to assess the return filed by the petitioner on the submission of an application in the prescribed Form No. 30. So, the petitioner is directed to submit the necessary application in the prescribed Form No. 30 for claim of refund within a fortnight from the date of communication of this order. Apparently, though it is time barred, this bar shall not be applied in this case since all these years the matter was pending before this court. ( 11 ) THUS, this application is allowed to the extent as above. ( 12 ) THERE will be no order as to costs. ( 13 ) STAY of operation of the judgment as prayed for is considered and rejected. ( 14 ) ALL parties concerned are to act on a signed copy of the minutes of the operative portion of this judgment on the usual undertakings.