JUDGMENT K.S. Jhaveri, J. —By way of this appeal, the assessee has assailed the judgment and order of the tribunal whereby tribunal has partly allowed the appeal of the assessee and modified the order of the CIT(A). 2. This court while admitting the appeal on 9.4.2012 framed only one question which reads as under :- "Whether under the facts and circumstances of the case and in law the learned ITAT was justified in confirming that the appellant is not entitled to deduction under section 10BA of the Act only on the premises that on account of revised return filed by the appellant, it had not claimed exemption under section 10BA of the Act?" 3. However subsequently when the matter was at final stage on an application, vide order dated 9.10.2017 following questions were added:- "ii. Whether without there being any error or omission in the Original Return filed under Section 139(1) of Act, a revised return filed under Section 139(5) of the Act, for withdrawing the deduction under Section 10BA of the Act, which otherwise legally Appellant is entitled for and such withdrawal was not permissible, such revised return ought not to have been considered by the ld. AO? iii. Whether claim made for deduction under Section 10BA of the Act in the original Return filed under Section 139(5) of the Act, without there being any error or omission in original return, and such revised return being not-est in law is hit by provisions of Section 80A (5) of the Act inserted from Finance Act 2009 with retrospective effect, restricts such claim?" 4. Counsel for the appellant Mr. Pathak contended that the first revised return for the relevant Assessment Year 2007-08, the assessee claimed exemption under section 10BA as per form 55 which was attached with the return which is part of Annexure-A-1 to these proceedings. However, he contended that for the A.Y. 2005-06, the claim was rejected vide Annexure-2. Identically, the claim for the subsequent year namely 2006-07 was also rejected against which he preferred an appeal which was also came to be rejected by the CIT(A) (Annexure-4) and also Annexure-5. 4.1 For the A.Y. 2006-07 however he preferred an appeal before the tribunal and pending the appeal he has filed a revised return Annexure-C on 7.5.2008 and has withdrawn his claim under section 10BA Annexure-1 to avoid any penalty proceedings. 4.1 For the A.Y. 2006-07 however he preferred an appeal before the tribunal and pending the appeal he has filed a revised return Annexure-C on 7.5.2008 and has withdrawn his claim under section 10BA Annexure-1 to avoid any penalty proceedings. 4.2 However, to his fortune, the tribunal held in his favour vide judgment and order dated 21.8.2009 Annexure-7 and immediately he has withdrawn his revised return which was filed on 7.5.2008. 5. He has emphasized the following claim made by the assessee in his letter dated 7.9.2009:- 6. Therefore in view of the decision of Hon''ble ITAT, I hereby request to your good self to please consider my claim of deduction under section 10BA as made by me in my original return filed on 31.10.2007 for which necessary documents are already on record. Again copies of all necessary documents are enclosed hereby for your reference. 7. It may be pointed out that it is a settled law that there can be no estoppels against law. If a claim is legitimately allowable to me the same has to be allowed even if I make such a claim in assessment proceeding. In present case I have originally made the claim but for the reasons stated above I withdrew the said claim but now in view of the ITAT decision I be allowed the claim of deduction under section 10BA as originally claimed by me. 5.1 He further contended that vide Annexure-9 for the A.Y. 2007-08, the Assessment order came to be passed ignoring the fact that the tribunal allowed his claim in his appeal and the AO has observed as under:- "Therefore, the assessee is not manufacturing or producing any article or thing as contemplated under section 10BA but was simply engaged in the polishing and finishing of the fully manufactured items purchased by it. Moreover, goods sold by the assessee could not be put under the category of "artistic Value". Hence the claim of exemption under section 10BA is not justified. Moreover as per amendment with section 80 A claim of deduction under section 10BA is to be claimed with return of Income. However assessee has been failed in doing so. Moreover, goods sold by the assessee could not be put under the category of "artistic Value". Hence the claim of exemption under section 10BA is not justified. Moreover as per amendment with section 80 A claim of deduction under section 10BA is to be claimed with return of Income. However assessee has been failed in doing so. Hence, any claim raised later on cannot be entertained in view of amendment as discussed above." 5.2 He further contended that CIT(A) has committed an error in observing as under:- "The A/R has submitted that Hon''ble ITAT, Jaipur Bench in appellant''s own case for A.Y. 2004-05 & 2005-06 as well as in A.Y. 2006-07 has decided the issue in favour of the appellant and as the facts remain identical this year as were in earlier year, as a finding precedence the issue in the year under consideration may be decided in favour of the appellant. However as the facts in the year under consideration are different to the extent that in original return filed the claim of deduction was made but the claim was subsequently withdrew by filing revise return. Under Section 139 (5) any person can revise the return if the person discovers any omission or any wrong statement therein. In the present case the appellant by revising the return has accepted that there was a wrong statement in the original return. Once a revised return is filed it becomes basis for the assessment and the original return gets vanishes. In the revised return there is no claim of deduction under section 10BA. By Finance Act 2009 amendment has been made w.e.f. 01.04.2003 i.e. retrospectively and sub section 5 of 80A was inserted. This subsection provides that where the assessee fails to make a claim in his return of income for any deduction under section 10A or 10BA, no deduction shall be allowed to him thereunder. As in the present case return means only revised return and no claim was made in the revised return, claim of deduction under section 10BA is not admissible. On this account also the claim of the appellant can not be allowed. The action of the AO is therefore upheld. As in the present case return means only revised return and no claim was made in the revised return, claim of deduction under section 10BA is not admissible. On this account also the claim of the appellant can not be allowed. The action of the AO is therefore upheld. First ground of appeal is decided against the appellant." 5.3 He further contended that the tribunal while considering the case observed as under:- 2.7 During the course of proceedings, the ld.AR was informed that one of us (Accountant Member) was a party to the order of Bangalore Bench in the case of ACIT v. JSW Steels Ltd., 4 ITR (Trib) 202 in which it was held that depreciation cannot be allowed by adverting to particulars furnished in the original return when revised return has been filed. The ld.AR relied on the decision of Honb''le Apex Court in the of Bajaj Tempo Ltd. 196 ITR 188 in which it has been held that a provision granting incentive should be construed liberally. Reliance has been placed on the decision of Hon''ble Allahabad High Court in the case of Commissioner of Income Tax v. Andhra Cotton Mills Ltd., 219 ITR 404 in which it is held that revised return cannot be filed for withdrawing claim in original return correctly made. The Hon''ble Calcutta High Court held that revised return cannot wash away original return. 2.8 We have heard both the parties. The Hon''ble Calcutta High Court held that revised return cannot wash away original return. 2.8 We have heard both the parties. It is useful to reproduce the provisions of Section 139(5), 80A(5) and 80AC " "Section 139 (5) If any person, having furnished a return under sub-section (1), or in pursuance of a notice issued under sub-section (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier: Provided that where the return relates to the previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year." Section 80A(5) Where the assessee fails to make a claim in his return of income for any deduction under section 10A or section 10AA or section 10B or section 10BA or under any provision of this Chapter under the heading "C.- Deductions in respect of certain incomes", no deduction shall be allowed to him thereunder. Section 80AC. Deduction not to be allowed unless return furnished. Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-A or section 80-IAB or section 80-IB or section 80-IC, or section 80-ID or section 80-IE no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139." 2.22 The Hon''ble Madras High Court in the case of Commissioner of Income Tax v. Pyramid Samiria Theatre Ltd. 316 ITR 75 had an occasion to consider as to whether the assessee can be considered as an assessee in default on the basis of the original return and not depositing the tax under section 140A, in case the assessee files the revised return under section 139(5) of the Act. The Hon''ble Madras High Court held that the assessee will not be default after filing of the revised return. The Hon''ble Madras High Court held that the assessee will not be default after filing of the revised return. The revised return filed under section 139(5) of the Act becomes the return under section 139(1) on the basis of the doctrine of substitution. The Hon''ble Allahabad High Court in the case of Dhampur Sugar Mills Ltd. v. Commissioner of Income Tax, 90 ITR 236 held as under:- "The effective return for purposes of assessment is thus the return which is ultimately filed by an assessee on the basis of which he wants his income to be assessed... But when an assessment has to be made the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return.... Once a revised return is filed, the original return must be taken to have been withdrawn and to have been substituted by a fresh return for the purpose of assessment." 5.4 Counsel for the appellant Mr. Pathak has relied upon the following decisions:- In Golden Insulation & Engg. Ltd. v. Commissioner of Income Tax (DEL HC) (2008) 305 ITR 427 it has been held as under:- 10. A bare reading of the aforesaid Section makes it clear that the assessed may file a revised return if it discovers any omission or any wrong statement therein. Insofar as the present case is concerned, there is no omission or wrong statement which required the assessed to file a revised return. The reason for filing the revised return was only that the company had passed a resolution to change its method of valuation of the closing stock because it did not correctly show the profit or loss for each accounting year, and that the new method adequately reflected the position in regard to the previous year''s operations. This meant that the assessed would show a loss of Rs. 4,01,290/- instead of Rs. 3,00,369/- declared with the return filed initially. 14. Insofar as the present case is concerned, we find that the provision of Section 139(5) of the Act clearly sets out the two conditions under which the revised return can be filed and none of these are applicable to the facts of the assessee''s case. 4,01,290/- instead of Rs. 3,00,369/- declared with the return filed initially. 14. Insofar as the present case is concerned, we find that the provision of Section 139(5) of the Act clearly sets out the two conditions under which the revised return can be filed and none of these are applicable to the facts of the assessee''s case. It is for this reason that the revised return showing the changed calculation of the closing stock ought not to have been accepted by the Assessing Officer. The only reason for the change in the method of valuation of the closing stock was, as explained by the assessed, that is, the method adopted did not reflect the correct state of affairs. The result of change in the method of valuation was that the assessed showed a loss of Rs. 4,01,290/- which is an increase from the original loss shown as Rs. 3,00,369/-. This was clearly not a legally valid reason nor was it bona fide. In the facts of the present case, the change was not justified or legally permissible." In Bajaj Tempo Ltd.v. Commissioner of Income Tax (1992) 196 ITR 188 Supreme Court held as under:- "5. The limited question is whether the assessee which has been found by tribunal to be a new company could be denied the benefit as visualised in Section 15C(1) because of operation of the Clause (i) of Sub-section (2). It is a restrictive clause. It denies benefit which is otherwise available in Sub-section (1). A provision in a taxing statute granting incentives for promoting growth and development should be construed liberally. In Broach Distt. Co-Operative Cotton Sales Ginning and Pressing Society Ltd. v. Commissioner of Income Tax, Ahmedabad, [1989] 177 ITR 418(SC) the assessee a cooperative society claimed that the receipts from the ginning and pressing activities was exempt under section 81 of the Income Tax Act. The question for interpretation was whether the cooperative society which carried on the business of ginning and pressing was society engaged in ''marketing'' of the agricultural produce of its members. The Court held that object of Section 81(1) was to encourage and promote the growth of cooperative societies and consequently a liberal construction must be given to the operation of that provision. The Court held that object of Section 81(1) was to encourage and promote the growth of cooperative societies and consequently a liberal construction must be given to the operation of that provision. And since ginning and pressing was incidental or ancillary to the activities mentioned in Section 81(1) the assessee was entitled to exemption and the proviso did not stand in way. In Commissioner of Income Tax, Amritsar v. Strawboard Manufacturing Company Ltd., [1989] 177 ITR 431(SC) was held that the law providing for concession for tax purposes to encourage industrial activity should be liberally construed. The question before the Court was whether Straw Board could be said to fall within the expression "paper and pulp" mentioned in the Schedule relevant to the respective assessment years. The Court held that since word "paper and pulp" was mentioned in the Schedule the intention was to refer to the paper and pulp industry and since Straw Board Industry could be described as forming part of the paper and pulp industry it was entitled to benefit." In Commissioner of Income Tax v. Chitranjali (1986) 159 ITR 801 , Calcutta High Court held as under:- "6. In the instant case, the assessment has been completed on a return filed by the assessee within the period prescribed under Section 153(1)(a) of the Act. It was not contended that in view of the subsequent return filed, the original return was invalid or non est. Section 139(5) permits an assessee, if he discovers an omission or wrong statement in the original return to file a revised return at any time before the assessment is made. Such revised return does not wash away the original return. Such revised return does not exonerate the assessee of any default or offence committed with reference to the original return. As a matter of fact, in this case, the Income Tax Officer in the course of the assessment initiated penalty proceedings under Section 271(1)(c) of the Act. An originally filed return is a return in all essential respects and the revised return only cures the defects contained in the original return. In disposing of an appeal, the Appellate Assistant Commissioner may confirm, reduce, enhance or annul the assessment or he may set aside the assessment or refer the case back to the Income Tax Officer for making a fresh assessment in accordance with the direction given by him. In disposing of an appeal, the Appellate Assistant Commissioner may confirm, reduce, enhance or annul the assessment or he may set aside the assessment or refer the case back to the Income Tax Officer for making a fresh assessment in accordance with the direction given by him. On appeal from the assessment, if it was completed within the period of limitation, the Appellate Assistant Commissioner may set aside the assessment and direct the Income Tax Officer to make a fresh assessment, if the assessment is otherwise not in conformity with law or procedure. The Income Tax Officer has the same power in making such fresh assessment as he had originally while making the assessment under Section 143 of the Act. If the Appellate Assistant Commissioner does not limit the scope of the enquiry by the Income Tax Officer to any specific aspect or issue, but only sets aside the entire assessment and directs the Income Tax Officer to make the assessment afresh, the power of the Income Tax Officer is not affected by anything which he might have omitted to do in the original order of assessment which was set aside by the Appellate Assistant Commissioner. In this case, the entire assessment order was challenged and the Appellate Assistant Commissioner, after accepting the contention of the assessee about the infirmity in the assessment, set aside the assessment directing the Income Tax Officer to make a fresh assessment. The Income Tax Officer in re-framing the assessment can take into account all the returns filed before him." In Commissioner of Income Tax v. Andhra Cotton Mills Ltd., 219 ITR 404. Andhra Pradesh High Court held as under:- "3. According to learned counsel for the Revenue, even the statutory provisions relating to assessment require that the particulars of depreciation had to be given and the deduction of depreciation allowance was necessary in making the assessment. We have gone through the decision cited by learned counsel for the Revenue and also the provisions of the IT Act. We find that under Section 139(5), a revised return could be filed if there is an omission or a wrong statement. No doubt, in the case of a company under the Companies Act, Sch. VI, Part II, the P&L account need not contain a provision for depreciation. But that fact has to be mentioned. We find that under Section 139(5), a revised return could be filed if there is an omission or a wrong statement. No doubt, in the case of a company under the Companies Act, Sch. VI, Part II, the P&L account need not contain a provision for depreciation. But that fact has to be mentioned. In the present case, the assessee had prepared a P&L account providing for depreciation and, therefore, did not opt for at the option in the normal course of its business. In the original return, the P&L account containing the provision for depreciation has been filed. In the circumstances, it cannot be said that there was any wrong statement in the original return which could enable the assessee to file a revised return under section 139(5). Since that valid revised return itself was not a valid return for being processed by the ITO, the claim of the assessee that the particulars of depreciation are not given and, therefore, the deduction should not be allowed is untenable. Moreover, under section 143(1)(b) (iv), even while making an assessment accepting the return of the assessee, the ITO has to allow the proper deduction under section 32. Under section 143(3), an assessment made under section 143(1) is deemed to be incomplete or inadequate if proper depreciation is not allowed. These provisions also indicate, along with section 28 which requires that the income from a business has to be computed in accordance with the provisions of sections 29-44, and r/w section 145, that depreciation is a proper deduction in arriving at the correct income from business. No doubt, section 34 provides that the deduction shall be allowed only if the prescribed particulars are furnished. This only ensures that correct information is available to the ITO for allowing the proper deduction. But this cannot be construed to mean that where the assessee deliberately withholds the information, no deduction for depreciation could be given in computing the income. In the present case, the motivation for the assessee to withdraw the claim for deduction of depreciation is only to get a set-off of the business loss of the earlier year. But this cannot be construed to mean that where the assessee deliberately withholds the information, no deduction for depreciation could be given in computing the income. In the present case, the motivation for the assessee to withdraw the claim for deduction of depreciation is only to get a set-off of the business loss of the earlier year. But the current depreciation is a first charge on the profit as held by the Supreme Court in Mother India Refrigeration Industries (P) Ltd.''s case (supra) and that charge cannot be ignored by withholding the particulars so as to avail of the setting off the earlier year''s loss which lapses by the prescribed period of limitation. In our considered opinion, therefore, the assessee cannot withdraw the claim for depreciation allowance when particulars are available in accordance with section 34 only for the purpose of setting off of the loss of the earlier years. Since the particulars were available as furnished along with the original return, the ITO is bound to allow the deduction of depreciation in computing the income from business. The assessment made by the ITO, in this case, is, therefore, correct and in accordance with law. The question referred to us is, therefore, answered in the negative, in favour of the Revenue and against the assessee." In Commissioner of Income Tax & Anr. v. Venkatesh Dutt (2009) 319 ITR 331 , Karnataka High Court held as under:- "9. The following questions of law was proposed by the State for consideration: (1) Whether the Tribunal had jurisdiction to entertain the cross-objections filed by the assessee to the appeal filed by the Revenue when the Revenue''s appeal had been dismissed by upholding the order of remand passed by the Appellate Commissioner resulting in the entire assessment order being set aside for consideration afresh ? (2) Whether the Tribunal was correct in proceeding to examine the merits of the assessment proceedings as to whether the income should be assessed in the hands of the assessee or not when the assessment order itself had been set aside and the entire matter was before the Assessing Officer for consideration afresh as the particulars available when passing the original assessments were not sufficient ? (3) Whether the Tribunal was correct in proceeding to entertain the cross-objections and permitting the assessee in the said proceedings for the first time to withdraw his earlier admission and concession that the income declared by him did not belong to him but to certain other entities without basing these conclusions on any cogent material and consequently recorded a perverse finding ? (4) Whether the Tribunal was correct in holding that the income which had been originally included in the assessment proceedings in the hands of the assessee and which had not been included in the hands of M/s. Intercorp Associates and other entities should be excluded from the total income of the assessee as assessments in the case of the firm had been reopened and in the case of one other entity reference application before this hon''ble court had been filed ? (5) Whether the Tribunal was correct in condoning the delay in presenting the cross-objections when no cogent reasons had been assigned by the assessee and especially when the main appeal filed by the Revenue had already been rejected and consequently the cross-objection itself could not be entertained ? 11. Re. Question No. 3 : It is a well-settled principle that when an assessee files any return or revised return, he/she is always entitled to in law to show that the return filed is by bona fide mistake. It is, therefore, in principle, cannot be argued that the assessee cannot retract from the returns or revised returns filed for the valid reason in law. In that view, question No. 3 is answered in the affirmative." In Esthuri Aswathiash v. Income Tax Officer (1961) 41 ITR 539 , Supreme Court held as under:- 6. Under section 22, sub-section (3), an assessee may submit a revised return if after he has furnished the return under sub-section (2) he discovers any omission or wrong statement therein. But such a revised return can only be filed "at any time before the assessment is made" and not thereafter. The return dated February 26, 1957, was submitted after the assessment was made pursuant to the earlier return and it could not be entertained. Nor could the lodging of such return debar the Income Tax Officer from commencing a proceeding for reassessment of the appellant under section 34(1) of the Indian Income Tax Act. The return dated February 26, 1957, was submitted after the assessment was made pursuant to the earlier return and it could not be entertained. Nor could the lodging of such return debar the Income Tax Officer from commencing a proceeding for reassessment of the appellant under section 34(1) of the Indian Income Tax Act. There is also no substance in the contention that for the assessment year 1950-51 the assessee could be assessed under the Mysore Income Tax Act and not under the Indian Income Tax Act. By the Finance Act XXV of 1950, section 13, clause (1), it was provided in so far as it is material that : "If immediately before the 1st day of April, 1950, there is in force in any Part-B State any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income Tax Act, 1922 (XI of 1922), for the year ending on the 31st day of March, 1951, or for any subsequent year." In Commissioner of Income Tax v. Lucknow Public Educational Society (2009) 318 ITR 223 , Allahabad High Court held as under:- "10. In the facts and circumstances of the case, we are of the view that the Assessing Officer has treated the Revised Return as "non est" wrongly for the reason that the Assessing Officer himself has passed the order under Section 143(3) on the basis of the Original Return where the assessee was legally entitled for the exemption under Section 11, if not under Section 10(23C). The department should not take advantage of the ignorance of the assessee as per the CBDT Circular No. 14 (XL-35)/1955, dated 11-4-1955, quoted in Parekh Bros. v. Commissioner of Income Tax [1984] 150 ITR 105 : [1983] 15 Taxman 539 (Ker.) . Hence, it was the duty of the Assessing Officer to ask information from the assessee at the time of scrutiny but he has not asked any information before completing the assessment under Section 143(3) of the Act. v. Commissioner of Income Tax [1984] 150 ITR 105 : [1983] 15 Taxman 539 (Ker.) . Hence, it was the duty of the Assessing Officer to ask information from the assessee at the time of scrutiny but he has not asked any information before completing the assessment under Section 143(3) of the Act. It may also be mentioned that the Tax Audit Report along with return is not a mandatory condition as per the ratio laid down in the case of Commissioner of Income Tax v. Rai Bahadur Bissesswarlal Motilal Malwasie Trust, [1992] 195 ITR 825 : 65 Taxman 273(Cal.) as well as in the case of Commissioner of Income Tax v. Sankalp Welfare Society, [2008] 303 ITR 64 (Punj. & Har.) . The Audit Report can be furnished before completing the assessment as per the ratio laid down in the case of Commissioner of Income Tax v. L.M. Singhvi, [2007] 289 ITR 425 : [2006] 157 Taxman 312 (Raj.). 12. In the instant case, the Assessing Officer has not asked any information before denying the exemption for which the assessee was legally entitled. On the other hand, he has rejected the Second Return which was enclosed with the necessary documents for claiming the exemption. 13. The ratio laid down in Kumar Jagdish Chandra Sinha''s case (supra), is not applicable in the instant case as the facts were quite different. In the said case, the penalty was imposed under Section 170(1C). It was observed that before assessment, it was the duty of the Assessing Officer and if it discovers any omission or any wrong statement in the original Return, then opportunity might have been given to the assessee. In the instant case, no opportunity was given to the assessee for any discrepancy. The assessee was entitled for exemption under section 11 of the Income Tax Act and that exemption was the statutory exemption available to the assessee.................." Another decision of this court in Commissioner of Income Tax v. Rajasthan Fasteners (P) Ltd. (2014) 363 ITR 271 (Raj. ) wherein it has been held as under:- "16. Admittedly, the respondent-assessee is a 100% export oriented unit and had been claiming exemption right from the assessment year 2004-05 under section 10B. ) wherein it has been held as under:- "16. Admittedly, the respondent-assessee is a 100% export oriented unit and had been claiming exemption right from the assessment year 2004-05 under section 10B. It may be that the claim is to be allowed on year to year basis but when facts and circumstances reveal that the assessee was eligible even this year for exemption under section 10B and it has been found to be in order except that instead of mentioning exemption under section 10B, while e-filing the return of the income tax, it was wrongly, on account of typographical error mentioned Section 80IB, in our view, it cannot be said to be such a mistake by which the exemption could be disallowed outrightly. It was already stated by the assessee during the course of hearing before the AO himself that it complies with all the requirements for claim of exemption under section 10B. The assessee company was under the bona fide belief that there was no mistake in the return, hence no revised return was filed but after knowing the clerical/computerized mistake that the claim was wrongly mentioned as under section 80IB instead of Section 10B, the assessee company filed a revised computation of income claiming deduction under section 10B of the IT Act vide letter dated 13/12/2010 before the AO. Not only this, the assessee also filed copy of ARE-1 duly sealed and signed by the custom authorities in respect of the exports having taken place. For evidencing realization of export bills, the statement of outstanding export bills from Andhra Bank as on 31/08/2008 showing the export bills outstanding for realization as on that date was also submitted. From the statement of outstanding export bills as confirmed by the Andhra Bank, it was clear that no bill prior to the date of March, 2008 had been shown as outstanding for realization. It is an admitted fact that since assessment year 2004-05, the assessee did not have any taxable income after adjusting unabsorbed depreciation and therefore tax was being paid under section 115J and therefore the deduction under section 10B was being claimed in computation of income. In our view, the mentioning of Section 80IB was only clerical mistake and with all fairness as per the facts & circumstances and as per the previous claims in tax calculation under section 115J, the assessee was legally entitled for this benefit. In our view, the mentioning of Section 80IB was only clerical mistake and with all fairness as per the facts & circumstances and as per the previous claims in tax calculation under section 115J, the assessee was legally entitled for this benefit. It was also admitted that the assessee had neither changed/revised the financial statements nor tax audit report (Form 3CD) originally filed by it. The assessee had only submitted audit report in Form 56G which was not enclosed with the return in view of provision of Rule 12 of the IT Rules. The purpose of audit report in Form 56G is totally different than the purpose of audit report in Form 3CA annexed with Form 3CD. It is also an admitted fact that the financial statement also remained the same. In our view, the spirit behind this statement must be that the assessee should have claimed the exemption in his return and filed the same within due date and in the instant case, the assessee on the facts available on record clearly shows that the claim was duly made but section was inadvertently wrongly mentioned and this fact came to the notice of the assessee at a later point of time when pointed out by the AO. In our view, the purpose of assessment proceedings before the taxing authorities was to assess the income correctly and the tax liability of an assessee in accordance with law. If such clerical mistake occurred, then in our view, the AO was duty bound to inform the assessee that this claim is wrongly claimed and that one may claim exemption under the concerned section. It is also an admitted position that substantial manufacturing activities were being carried out by the assessee within the bonded premises in terms of CBEC circular No. 65/2002-Cus dated 07/10/2002 and notification No. 52/2003-Cus dated 31/03/2003. It is also an admitted position that substantial manufacturing activities were being carried out by the assessee within the bonded premises in terms of CBEC circular No. 65/2002-Cus dated 07/10/2002 and notification No. 52/2003-Cus dated 31/03/2003. In our view, the allegation of the AO was totally unfounded as all the documents, which are issued by the Government authorities, could not have been predated or fabricated by the assessee and in our view the allegation of the AO that the claim could be in the nature of an afterthought is not correct." 5.5 The main contention of the appellant was with regard to provisions of Section 139(5) which reads as under:- (5) If any person, having furnished a return under sub-section (1), or in pursuance of a notice issued under subsection (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier : Provided that where the return relates to the previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year. 5.6 He contended that the return was filed with a view to avoid penalty since his claim under section 10BA was rejected by the Assessing Officer and confirmed by the CIT(A) in two previous years. Therefore, to avoid any penalty he has withdrawn his claim. However, subsequently when the decision came in his favour, the tribunal has written letter withdrawing the revised return which was filed on 7.5.2008. The main contention was that the return which was filed under section 139(5) was non-est inasmuch return under Section 139(5) can be filed only in a case where sub-section (1) it contains omission or any wrong statement therein. 5.7 Mr. Pathak relying on the above decisions contended that two courts have referred and held that Section 139(5) is non-est in view of the fact that the omission and wrong statement was not there. 5.7 Mr. Pathak relying on the above decisions contended that two courts have referred and held that Section 139(5) is non-est in view of the fact that the omission and wrong statement was not there. 5.8 He further contended that the claim which was made under section 80A and under Sub clause (5) even if the claim is not made, it is duty of the Assessing Officer to allow the said claim as it was filed in the return which was filed earlier and it was on record that the claim which was made ought to have been allowed in view of the language used in sub clause (5) of Section 80A. He further contended that the Assessing Officer has allowed for the subsequent year the same claim and for previous two years, the tribunal has allowed and it is only for the relevant year where the assessee has put to loss because of the delay in decision of the tribunal and to file the revised return. Therefore, he is victim of the circumstances which is beyond his control and sufferer of delay system. 6. Counsel for the respondent Mr. Singhi has relied upon the decision of the Supreme Court in the case of Commissioner of Income Tax v. Mahendra Mills (2000) 243 ITR 56 wherein it has been held as under:- "25. In Ascharajlal Ram Prakash case [1973] 90 ITR 477 (All) Allahabad High Court said that since it is not mentioned in Section 34 as to in what form the prescribed particulars of depreciation must be furnished and that, therefore, there is no requirement in that Section that particulars must be furnished. High Court further went on to say that merely because the form of return provides for a place where the statement of such particulars should be set out, would not mean that in absence of such statement the Income-tax Officer has no power to allow the depreciation. This is contrary to the mandate of Section 34 as well as the Board circular dated August 31, 1965. Madras High Court in Dasa Prakash Bottling Co. Case [1980] 122 ITR 9(Mad) following Allahabad High Court in the case of Ascharajlal Ram Prakash said that Income-tax Officer can disallow the claim of depreciation if the assessee did not furnish the prescribed particulars. Madras High Court in Dasa Prakash Bottling Co. Case [1980] 122 ITR 9(Mad) following Allahabad High Court in the case of Ascharajlal Ram Prakash said that Income-tax Officer can disallow the claim of depreciation if the assessee did not furnish the prescribed particulars. It further went on to hold that it would be open to the Income-tax Officer to grant depreciation even if the assessee had not furnished the prescribed particulars. In this case the assessee did not give the particulars relating to depreciation in the return form nor did it claim depreciation. On being called upon by the Income-tax Officer to furnish necessary particulars the assessee in response thereto furnished the particulars under protest. On that basis the Income-tax Officer granted the depreciation. We do not think that the views expressed by the Madras High Court lay down correct law. Section 34 is not in the nature of merely an enabling provision. In the absence of particulars of depreciation as required by Section 34, there is no mandate on the Income-tax Officer under Section 29 to compute the income by allowing depreciation under Section 32. In the second Madras case ( Commissioner of Income Tax v. Southern Petro Chemicals Industries Corporation Ltd, [1998] 233 ITR 400(Mad) the assessee did claim depreciation but he withdrew the same in the revised return. On that basis it was held that since the assessee had furnished the particulars regarding the claim of depreciation in the original return the assessee would not be able to withdraw his claim for depreciation. It would appear that High Court proceeded on the basis that the revised return was not a valid return under Section 139(5) of the Act. High Court followed its earlier decision in Dasa Prakash Bottling Co, To us it appears that if the revised return is a valid return and the assessee has withdrawn the claim of depreciation it cannot be granted relying on the original return when the assessment is based on the revised return. 26. We get support from the earlier decision of this Court in Dharampur Leather Co. Ltd. Case [1966] 60 ITR 165(SC) . Allowance of depreciation is calculated on the written down value of the assets, which written down value would be the actual cost of acquisition less the aggregate of all deductions "actually allowed" to the assessee for the past years. "Actually allowed" does not mean ''notionally allowed''. Ltd. Case [1966] 60 ITR 165(SC) . Allowance of depreciation is calculated on the written down value of the assets, which written down value would be the actual cost of acquisition less the aggregate of all deductions "actually allowed" to the assessee for the past years. "Actually allowed" does not mean ''notionally allowed''. If the assessee has not claimed deduction of depreciation in any past year it cannot be said that it was notionally allowed to him. A thing is "allowed" when it is claimed. A subtle distinction is there when we examine the language used in Section 16 and that Sections 34 and 37 of the Act. It is rightly said that a privilege cannot be to a disadvantage and an option cannot become an obligation. 27. We thus uphold the views expressed by the High Courts of Bombay, Punjab and Haryana, Karnataka, Andhra Pradesh, Calcutta and Kerala. Accordingly the appeal is dismissed. We answer the question set out in the beginning of this judgment in affirmative, i.e., in favour of the respondent-assessee and against the Revenue. There shall be no order as to costs." 6.1 He also relied upon the decision of Gujarat High Court in Principal Commissioner of Income Tax-I v. Babu Bhai Ramamn Bhai Patel (2017) 84 Taxman.com 32 (Guj.) wherein it has been held as under:- 6. Sub-section (5) of Section 139, therefore, gives right to an assessee who has furnished a return under sub-section (1) or sub-section (4) to revise such return on discovery of any omission or a wrong statement. Such revised return, however, can be filed before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. This is precisely what the assessee did while exercising the right to revise the return. Sub-section (5) of Section 139 does not envisage a situation whereupon revising the return if a case for loss arises which the assessee wishes to carry forward, the same would be impermissible. In terms, sub-section (5) of Section 139 allows the assessee to revise the return filed under subsection (1) or sub-section (4) as long as the time frame provided therein is adhered to and the requirement of the revised return has arisen on discovery of any omission or a wrong statement in the return originally filed. In terms, sub-section (5) of Section 139 allows the assessee to revise the return filed under subsection (1) or sub-section (4) as long as the time frame provided therein is adhered to and the requirement of the revised return has arisen on discovery of any omission or a wrong statement in the return originally filed. Accepting the contention of the revenue would amount to limiting the scope of revising the return already filed by the assessee flowing from sub-section (5). No such language or intention flows from such provision. 6.1 The Allahabad High Court in case of Dhampur Sugar Mills Ltd. v. Commissioner of Income Tax, Delhi Central reported in [1973] 90 ITR 236, in the context of the Income Tax Act, 1922 held that the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return. The earlier return, after a revised return has been filed, cannot form the basis of assessment although it may be used to indicate the conduct of the assessee. There is a clear distinction between a revised return and a correction of return. Once a revised return is filed, the original return must be taken to have been withdrawn and substituted by a fresh return for the purpose of assessment. 6.2 He further relied upon the decision of Supreme Court in Goetze (India) Ltd. v. Commissioner of Income Tax (2006) 284 ITR 323 wherein it has been held as under:- 2. The question raised in this appeal relates to whether the appellant assessee could make a claim for deduction other than by filing a revised return. The assessment year in question was 1995-96. The return was filed on 30-11-1995, by the appellant for the assessment year in question. On 12-1-1998, the appellant sought to claim a deduction by way of a letter before the assessing officer. The deduction was disallowed by the assessing officer on the ground that there was no provision under the Income Tax act to make amendment in the return of income by modifying an application at the assessment stage without revising the return. 3. This appellant''s appeal before the Commissioner (Appeals) was allowed. However, the order of the further appeal of the department before the Income Tax Appellate Tribunal was allowed. 3. This appellant''s appeal before the Commissioner (Appeals) was allowed. However, the order of the further appeal of the department before the Income Tax Appellate Tribunal was allowed. The appellant has approached this court and has submitted that the Tribunal was wrong in upholding the assessing officer''s order. He has relied upon the decision of this court in National Thermal Power Company Ltd. v. Commissioner of Income Tax, [1998] 229 ITR 383(SC) , to contend that it was open to the assessee to raise the points of law even before the Appellate Tribunal. 4. The decision in question is that the power of the Tribunal under section 254 of the Income Tax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the assessing officer to entertain a claim for deduction otherwise than by filing a revised return. In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income Tax Appellate Tribunal under section 254 of the Income Tax Act, 1961. There shall be no order as to costs. 6.3 He also relied upon the decision of Allahabad High Court in Dhampur Sugar Mills Ltd. v. Commissioner of Income Tax (1973) 90 ITR 236 wherein it has been held as under:- "5. The question however remains as to whether this return will continue to form the basis for purposes of assessment even after it was substituted by a revised return. Section 22(3) of the 1922 Act as also Section 139(5) of the 1961 Act permit an assessee to file a revised return if he discovers any omission or wrong statement in the return filed by him. The Income-tax Act contemplates the filing by the assessee of a correct and complete return. The law gives him a right to substitute and bring on record a correct and complete return if he discovers any omission or wrong statement in the return originally filed by him. The law cannot contemplate the making of assessment on the basis of a return which even the assessee claims contains wrong statements. The law gives him a right to substitute and bring on record a correct and complete return if he discovers any omission or wrong statement in the return originally filed by him. The law cannot contemplate the making of assessment on the basis of a return which even the assessee claims contains wrong statements. When an assessee files a revised return, he in fact admits that the original return filed by him was not correct or complete and substitutes the same by a revised return which according to him is correct and complete. The effective return for purposes of assessment is thus the return which is ultimately filed by an assessee on the basis of which he wants his income to be assessed. Learned counsel for the assessee, to support his contention to the contrary, urged that, as penalty proceedings under Section 28(1)(c) of the 1922 Act or under Section 271(2)(c) of the 1961 Act are permissible if the assessee conceals the particulars of his income or deliberately furnishes inaccurate particulars of such income in the original return even though he may subsequently file a correct and complete revised return, it must be held that the original return is also the effective return. I am not inclined to accept the contention. A person is penalised for the wrong act that he does and the offence becomes complete as soon as the act is done. It cannot be cured by subsequent mending. It is on this principle that an assessee can be penalised for concealing the particulars of his income or deliberately furnishing inaccurate particulars of such income. But, when an assessment has to be made the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return. The earlier return, after a revised return has been filed, cannot form the basis of assessment although it may be used to indicate the conduct of the assessee. Hence, for the purpose of assessment of income, the effective return must be the revised return filed by the assessee ultimately. 6. There is a distinction between a revised return and a correction of the return. Hence, for the purpose of assessment of income, the effective return must be the revised return filed by the assessee ultimately. 6. There is a distinction between a revised return and a correction of the return. If the assessee files some application for correcting a return already filed or making amends therein, it would not mean that he has filed a revised return. It will still retain the character of an original return, but once a revised return is filed, the original return must be taken to have been withdrawn and to have been substituted by a fresh return for the purpose of assessment. The same view has been taken in Gopaldas Parshottamdas v. Commissioner of Income-tax, [1941] 9 I.T.R. 130 (All.) ." 6.4 He also relied upon the decision of this court in M/s. Young Steel Pvt. Ltd. v. Commissioner of Central Excise, Jaipur-I D.B. Central/Excise Appeal No. 1/2006 decided on 23.8.2017 wherein it has been held as under:- "10. Taking into consideration that no basis was laid even before first authority or the Tribunal and when the act and provisions are made it is not to be presumed ultra vires unless it has been quashed and set aside by the High Court or any High Court or the Supreme Court, in writ jurisdiction. 11. In our considered opinion, regarding Section 35G it will not be appropriate to held any provision to be unconstitutional because power under section 35G is only to be exercised in substantial question of law arising out of the Central Excise Act and not on any constitutional point. 12. In that view of the matter, the fist question is required to be answered against the assessee in favour of the department. On the second issue which is posed for our consideration is section 10 of the General Clauses Act and the judgment of Manglore Chemicals (supra). 13. In our considered opinion, when considering the rule there are five conditions which are required to be fulfilled since the assessee is claiming exemption. If one is to claim exemption and non-payment of tax, interpretation of such exemption should be construed and it is in aid to rule. Once the interpretation is found to be proved one has to go by the rule. 14. If one is to claim exemption and non-payment of tax, interpretation of such exemption should be construed and it is in aid to rule. Once the interpretation is found to be proved one has to go by the rule. 14. In our considered opinion, the rule even if it is construed liberally cannot travel beyond the next working day of the closure either it is Saturday, Sunday and public holiday or any other circumstances where the movement of a person is not possible to reach the office of the Central Government or the respondent namely in a case of curfew or any other exigency, the time can be extended and all documents on record do not show that on the date of intimation of there was curfew in the area which is to be proved by the assessee and not by the department." 7. We have heard counsel for the parties. 7.1 Before proceeding with the matter, the crucial question which came for our consideration is whether return filed under section 139(5) is revised return and return filed on 7.5.2008 Annexure-5 can be allowed to be withdrawn vide letter dated 7.9.2009. 8. On a close reading of Sub-Section (5) of Section 139, it is very clear that the legislature has given a chance to the assessee to check his position within one year or before the end of the relevant assessment, whichever is earlier. Since, the period was expired but for the year the assessee has taken his position and withdrawn his claim after that position is taken. Section 139(5) is very clear that the assessee could not have withdrawn the claim, having withdrawn the same by filing revised return. It is only open for the department to accept it or not to accept it. Having taken advantage of the position of claiming benefit under section 139(5) and to avoid penalty, in our considered opinion, it is not desirable to allow any party to blow hot and cold. If the tribunal decision would not have been in his favour, the assessee could not have contended that this is non-est. Even if the department would have denied that this is non-est, he would have contested the matter. 9. Apart from that, it is very settled law that a person who is taking advantage of provisions of Section 139(5), he cannot say that it is non-est. Even if the department would have denied that this is non-est, he would have contested the matter. 9. Apart from that, it is very settled law that a person who is taking advantage of provisions of Section 139(5), he cannot say that it is non-est. In that view of the matter, even if the view taken by the tribunal subsequently but legally Section 139(5) benefit cannot be withdrawn vide letter dated 7.9.2009, which is reproduced here for ready reference:- "6. Therefore in view of the decision of Hon''ble ITAT, I hereby request to your good self to please consider my claim of deduction under section 10BA as made by me in my original return filed on 31.10.2007 for which necessary documents are already on record. Again copies of all necessary documents are enclosed hereby for your reference. 7. It may be pointed out that it is a settled law that there can be no estoppels against law. If a claim is legitimately allowable to me the same has to be allowed even if I make such a claim in assessment proceeding. In present case I have originally made the claim but for the reasons stated above I withdrew the said claim but now in view of the ITAT decision I be allowed the claim of deduction under section 10BA as originally claimed by me." 10. In that view of the matter, revised return was not permissible and revised return of revised return is not thought of by the legislature. Thus, under section 139(5) once return is filed after the period of limitation which is prescribed under the Act, the position of the assessee is very clear that he cannot do it. It is only for the department to take the call whether to accept or not. 11. On the point of Section 80A (5), in our considered opinion the return which is claimed under consideration not of return which he has filed. In that view of the matter, the contention of Mr. Pathak that the revised return along with the earlier return ought to have been considered, in our considered opinion, the return which is referred in 80A(5) is to be considered which is filed for the relevant year under consideration of the AO and not of the return which he stated and he cannot claim any benefit of the same. 12. Pathak that the revised return along with the earlier return ought to have been considered, in our considered opinion, the return which is referred in 80A(5) is to be considered which is filed for the relevant year under consideration of the AO and not of the return which he stated and he cannot claim any benefit of the same. 12. In view of the above, all the issues are answered in favour of the department and against the assessee. Hence, the appeal stands dismissed.