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2022 (2) TMI 1459 - AT - Income TaxDenial of claim of carry forward of loss - revised return of income was not filed based upon the audited accounts - assessed admittedly enclosed provisional financial statements along with its return of income as accounts were not audited by that time - second round of litigation - HELD THAT - AO is under obligation u/s 139(9) to issue notice to the assessee giving fifteen days time or such further extended time to rectify the defect, and once the assesse rectifies the defect within stipulated time, the return will be treated as valid return. It is only when the assessee fails to rectify the defect within stipulated time , then the return will be treated as invalid return and it will be deemed that the assessee has never filed return of income. Section 139(9) further grants power to AO to condone the delay and treat the return as valid , even if the said defect is not rectified within the period stipulated by AO in its notice u/s 139(9) of the 1961 Act, but the said defect stood rectified before assessment is completed. It is admitted position that the AO did not issue any such notice u/s 139(9) to the assessee calling assessee to rectify the aforesaid defect. As admitted position that the audited accounts and tax- audit return was filed by the assessee during the course of assessment proceedings, albeit the assessee did not file revised return of income. Further, as held in the case of CIT v. Pruthvi Brokers Shareholders 2012 (7) TMI 158 - BOMBAY HIGH COURT assessee can always present its claim before the appellate authorities for the first time even if the said claim is not made in the return of income filed with the Revenue, If the assessee has not got its statutory audit done under Companies Act, 1956(Now Companies Act, 2013) within the prescribed time, or has not got its tax audit done under the provisions of Section 44 AB of the 1961 Act, there are penal provisions provided under the statute for such non-compliances. There could be several reasons for not getting the statutory audit/tax-audit done within prescribed time, but unless there is specific/express provision which stipulates that if the audit is not done within prescribed time, the loss shall not be allowed to be carried forward, we cannot expand the scope of the statute. Section 80 stipulates that return of income is to be filed within the prescribed time, which assessee did complied with although provisional financial statements were filed along with return of income. Tribunal in first round of litigation has directed AO to assess income/ loss of the assessee on the basis of audited financial accounts and other materials in accordance with law. Thus, we are of the considered view, that there is no justification for denying the carry forward of the business loss for the year under consideration based on the audited financial statements keeping in view applicable and relevant provisions of the 1961 Act for computing such loss, and we confirm the appellate order of the ld. CIT(A). Decided against revenue.
Issues Involved:
1. Denial of carry forward of loss by the Assessing Officer (AO). 2. Timeliness and validity of the return filed by the assessee. 3. Requirement and impact of filing a revised return based on audited accounts. 4. Directions and mandate provided by the ITAT in the first round of litigation. 5. Interpretation and application of Section 80 of the Income Tax Act. 6. Powers of the appellate authorities to entertain new claims or grounds. Issue-wise Detailed Analysis: 1. Denial of Carry Forward of Loss by the AO: The AO initially denied the carry forward of the business loss claimed by the assessee on the grounds that the loss was based on provisional financial statements and not audited accounts. The AO held that since the assessee did not file a revised return after auditing the accounts, the loss could not be carried forward. This decision was challenged by the assessee, leading to the first round of litigation where the ITAT directed the AO to reassess the income/loss based on audited financial statements. 2. Timeliness and Validity of the Return Filed by the Assessee: The assessee filed its return of income within the prescribed time under Section 139(3) read with Section 139(1) of the Income Tax Act, declaring a loss of Rs. 2,96,55,033/-. However, the return was accompanied by provisional financial statements as the accounts were audited later on 5th February 2003. The AO did not issue a notice under Section 139(9) to rectify the defect of not filing the audited accounts with the return. The tribunal noted that under Section 139(9), the AO should have provided an opportunity to rectify the defect, and the return should not be treated as invalid if the defect is rectified before the assessment is completed. 3. Requirement and Impact of Filing a Revised Return Based on Audited Accounts: The revenue argued that the assessee should have filed a revised return based on the audited accounts. However, the tribunal held that the failure to file a revised return does not invalidate the original return if the audited accounts are submitted during the assessment proceedings. The appellate authorities can entertain new claims or grounds even if not raised in the original return, as supported by the precedent set in CIT v. Pruthvi Brokers & Shareholders. 4. Directions and Mandate Provided by the ITAT in the First Round of Litigation: In the first round of litigation, the ITAT directed the AO to assess the income/loss of the assessee based on audited financial statements and other materials in accordance with the law. The AO, in the second round, again denied the carry forward of business loss, which was challenged by the assessee. The CIT(A) held that the AO exceeded the mandate given by the ITAT by denying the carry forward of loss, which was to be determined based on audited accounts. 5. Interpretation and Application of Section 80 of the Income Tax Act: Section 80 stipulates that no loss shall be carried forward unless determined in pursuance of a return filed under Section 139(3). The tribunal held that the assessee complied with the requirement by filing the return within the prescribed time, albeit with provisional financial statements. The tribunal emphasized that the AO should have allowed the carry forward of loss based on the audited financial statements submitted during the assessment proceedings. 6. Powers of the Appellate Authorities to Entertain New Claims or Grounds: The tribunal referred to the judgment in CIT v. Pruthvi Brokers & Shareholders, which established that appellate authorities have the jurisdiction to entertain new claims or grounds not raised in the original return. The tribunal concluded that the assessee's claim for carry forward of loss based on audited accounts was valid and should be allowed. Conclusion: The tribunal dismissed the appeal filed by the Revenue, confirming the appellate order of the CIT(A) that allowed the carry forward of business loss based on audited financial statements. The tribunal held that the AO's action of denying the carry forward of loss was without basis and exceeded the mandate provided by the ITAT in the first round of litigation. The appeal by Revenue was dismissed, and the order was pronounced in open court on 23rd February 2022.
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