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TMI Blog1993 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... t order, the Assessing Officer observed that since the assessee did not file the return within the time allowed under s. 139 of the IT Act, the benefit of carry forward of business loss, in view of s. 80 of the IT Act, would not be allowed. Assessee appealed to the CIT(A), and claimed that it had filed extension applications from time to time seeking extension upto30th June, 1986and since, the return had been filed before the expiry of30th June, 1986, the loss may be allowed to be carried forward. The CIT(A) by the impugned order did not accept the claim of the assessee on the ground that the three of the four applications filed in Form No. 6 had not been filed after the expiry of the time, whether allowed originally or on extension and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SC 1400, where it has been held that the assessee should not suffer for the inaction, deliberate omission or misdemeanor of his counsel. Photostat copy of the decision has been placed on record. The decision of the Madhya Pradesh High Court in the case of Mahavir Prasad Jain vs. CIT (1988) 172 ITR 331 (MP) has also been cited in support of the claim that appellant could not be made to suffer for the negligence of the counsel. It was, accordingly, pleaded that the loss determined by the Assessing Officer may be allowed to be carried forward under the provisions of s. 72 of the IT Act, 1961. 3. The learned Departmental Representative, Smt. Anuja Sarangi, contended that under s. 80 of the Act a loss which has not been determined in pursuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 965241 31.1.86 30.3.86 819280 30.4.86 19.5.86 114072 30.6.86 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 s. 139(1). Where applications are filed before the expiry of the time allowed for filing of the return under s. 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 vs. R.G. Nitsure (1981) 132 ITR 631 (Bom) (Under WT Act); 2. CIT vs. Gordhanbhai (1982) 31 CTR (Guj) 244 : (1982) 142 ITR 84 (G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the considered view that Assessing Officer is duty bound to consider the application filed by the assessee even after the expiry of the time allowed under s. 139(1) either originally or on extension, on merits before deciding the claim of the assessee regarding the carry forward of loss. Under s. 139(1) as applicable for the relevant assessment year the time allowed for filing of the return was upto30th June, 1985. There is a proviso to s. 139(1) which reads as under: "Provided that on an application made in the prescribed manner, the ITO may in his discretion extend the date for furnishing the return and notwithstanding the fact that the date is so extended, interest shall be chargeable in accordance with the provisions of sub-s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be signed by a person who is entitled to sign a return of income as provided in s. 140 of the IT Act, 1961." It is evident from proviso to s. 139(1), r. 13 and Form No. 6 that no time limit is prescribed for furnishing of the application for extension of the date for furnishing the return of income. The language of Form No. 6, however, clearly indicates that the application can be filed either before the time allowed under s. 139(1) or after the expiry of the said time but obviously before the completion of assessment. The words used in Form No. 6 are "for the reasons given below, it is not possible/has not been possible for me to file the return before the said date". The words "is not possible" would be applicable in a case where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and then pass a speaking order as to whether reasonable cause was shown or not". 9. In the case of Karam Singh vs. CIT (1977) 110 ITR 726 (P H) their Lordships of thePunjab 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 s. 139(2) of the IT 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 s. 139(1), r. 13 of the IT Rules and Form No. 6 and the aforementioned decisions, we are of the considered view that the assessee being en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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