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TMI Blog1993 (8) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ime to time seeking extension up to30-6-1986 and since, the return had been filed before the expiry of30-6-1986, the loss may be allowed to be carried forward. The CIT (Appeals) by the impugned order did not accept the claim of the assessee on the ground that the three of the 4 applications filed in Form No. 6 had not been filed after the expiry of the time, whether allowed originally or on extension and, therefore, the assessee was not entitled to the benefit of decision of the Patna High Court in the case of CIT v. S.P. Vij Construction Co. [1987] 165 ITR 732, where their Lordships have held that the filing of extension application, if not rejected, amounts to granting of extension. It may be pertinent to mention that for assessment year 1986-87 also assessee had filed the return after the expiry of the time allowed originally under section 139(1) and the Assessing Officer had declined to allow carry forward of loss. The CIT (Appeals) having found the applications in Form No. 6 filed before the expiry of the time, held that assessee was entitled to presumption of extension and, therefore, was entitled to the carry forward of loss - time having been deemed to have been extended. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 743983 seeking extension of time up to30-9-1985. Since, this application has been filed well before the time allowed under section 139(1) assessee was entitled to presume extension up to30-9-1985. This is as per the view expressed by the CIT (Appeals) himself in the impugned order on the basis of the decision of the Patna High Court in the case of S.P. Vij Construction Co. Assessee has filed further applications in Form No. 6 as under:--- Date of filing Receipt No. Extension sought up to 26-11-1985 965241 31-1-1986 20-3-1986 819280 30-4-1986 19-5-1986 114072 30-6-1986 5. As is seen from above all the three applications have been filed after the expiry of the time for filing of the return under section 139(1). Where applications are filed before the expiry of the time allowed for filing of the return under section 139(1) either originally or on extension, there is no difficulty to hold that assessee would be justified in presuming grant of extension. This is the view supported by various judicial authorities, some of which are indicated below:--- 1. Lachman Chaturbhuj Java v. R.G. Nitsure [1981] 132 ITR 631 (Bom.) (Under WT Act); 2. CIT v. Gordhanbhai Jethabhai [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of which the Assessing Officer is empowered to extend the date. The only condition imposed under the proviso is that the application is to be filed in the prescribed manner. Rule 13 of the Income-tax Rules, 1962 which stands omitted w.e.f.1-4-1989reads as under:--- "The application to the income-tax Officer under the proviso to sub-section (1) or the proviso to sub-section (2) or sub-section (3) of section 139 for seeking an extension of the date for furnishing a return of income shall be in Form No. 6." 7. Form No. 6 has been prescribed as under: "FORM NO. 6 Application for extension of the date for furnishing a return of income under section 139 of the Income-tax Act, 1961 TO The (Assessing) Officer, .................................... Under section 139(1)/(2)/(3) of the Income-tax Act, 1961, I/we have to file the return of my/our income .................. the income of ............................................................. in respect of which I/we am/are assessable for the assessment year commencing on the 1st April, 19.... before......... 19.... for the reasons given below, if is not possible/has not been possible for me/us to file the retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the reasons for not furnishing the return in time after the expiry of time for furnishing the return of income, the ITO must consider the application giving the reasonable opportunity to all parties concerned and then pass a speaking order as to whether reasonable cause was shown or not". 9. In the case of Karam Singh v. CIT [1977] 110 ITR 726 Their Lordships of the Punjab and Haryana High Court have held as under:--- "From the application form prescribed for asking for extension of time for filing of the return of income, it is clear that the application can be made even after the expiry of the prescribed date. Moreover, the proviso to section 139(2) of the Income-tax Act, 1961 does not contain any limitation to the effect that such an application must be made before the due date." 10. Considering the proviso to section 139(1), rule 13 of the Income-tax Rules and Form No. 6 and the aforementioned decisions, we are of the considered view that the assessee being entitled to file an application even after the expiry of the time allowed for furnishing of the return under section 139(1), the Assessing Officer is duty bound to dispose of the same before deciding the issue relating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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