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TMI Blog2016 (4) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, which the assessee has failed to do. There should not be any doubt that the assessee could not have filed any revised return of income after 31.3.2011, meaning thereby, the assessee has lost his right to file revised return of income for the year under consideration. Having lost the right so, in our view, the assessee could not have made good the same by filing revised computation of income and thus claim carry forward of loss. The said action of the assessee, in our view, defeats the statutory mandate prescribed in sec. 139(5) read with section 139(3) of the Act. The assessment order that the assessing officer has considered the revised computation of income and assessed the income declared therein, but refused to consider the loss occurred in F&O transactions. We have noticed that the revised computation of income has been filed beyond the time limit prescribed for filing revised return of income u/s 139(5) of the Act and we have held that the assessee is not entitled to make good his omission to file revised return of income by filing the revised computation of income, since the said action of the assessee would defeat the statutory mandate of the provisions of sec. 139(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the loss, even if it is entertained, cannot be carried forward in the succeeding year, since the assessee did not claim the loss by filing the revised return of income as mandated u/s 139(3) of the Act. 6. The Ld CIT(A), however, took the view that the revised computation filed during assessment proceedings amounts to filing of return within stipulated time. He further held that the mistake in not making the claim in the return of income does not debar the assessee to claim the same in assessment proceedings. He further referred to the Circular No.14 (XL-35) dated 11/04/1995, wherein it is stated that the department must not take advantage of ignorance of the assessee as to his rights. The Ld CIT(A) also placed reliance on the decision rendered by the Hon ble Bombay High Court in the case of CIT Vs. Pruthvi Brokers Shareholders Pvt Ltd (ITA No.3908 of 2010) and the decision rendered by the ITAT in the case of Chicago Pneumatic India Ltd Vs. DCIT (15 SOT 252)(Mum) and accordingly directed the AO to consider the revised computation of income furnished by the assessee during the course of assessment proceedings and allow the set off of loss from F O transactions against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income within the time limit prescribed u/s 139(5) of the Act, he is not entitled to revise his return of income at all. 9. In the instant case, the assessment year involved is AY 2009-10. One year from the end of the year expires on 31.3.2011. The assessment has been completed by the AO on 29.12.2011. Hence the revised return could have been filed by the assessee by 31.3.2011, since that period expires earlier. However, it is an admitted fact that the assessee has not filed any revised return of income. 10. We have noticed that the assessee has omitted to disclose the loss arising on F O transactions in the original return of income filed u/s 139(1) of the Act. Upon discovery of such omission, it was incumbent upon the assessee to file a revised return of income within the time limit prescribed u/s 139(5) of the Act. The effect of filing of revised return of income is that it shall substitute the original return of income and accordingly, the AO shall proceed to assess the total income on the basis of revised return of income. 11. In the instant case, as noticed earlier, the assessee has not filed any revised return of income upon discovering his omission to disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to support the view. It is an admitted fact that the revised computation was filed beyond the time limit prescribed u/s 139(5) of the Act. The above said observations of the Ld CIT(A) defeats the provisions of sec. 139(5) of the Act. Hence, we are unable to agree with his view for the detailed reasons discussed in the preceding paragraphs. Accordingly, we are of the view that the assessing officer was justified in not entertaining the claim of loss and thus, not allowing set off of the same against professional income/other income of the year under consideration. In view of the above, we are of the view that the Ld CIT(A) was not justified in directing the AO to allow set off of F O Loss against the professional income/income from other sources. Accordingly we set aside his order on this issue. 13. For the reasons stated above, the assessee shall not be entitled to claim carry forward of losses also, since we have held that the assessee could not make good the right lost by him. Since the assessing officer did not admit the loss, which was found to be justified by us, the question of carry forward of unabsorbed loss does not arise at all. In this regard, it is pertin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Delhi High Court was (i) whether the loss determined by the AO while giving effect to the order of the Tribunal shall be treated a loss determined in pursuance of Return of loss filed u/s 139(3) of the Act and (ii) whether the AO has exceeded his jurisdiction while giving effect to the order passed by the Tribunal. Hence, the questions before Hon ble Delhi High Court were totally different question. Even otherwise, the assessee therein sought for enhancement of loss already declared by it in the original return of income, which is not the case before us. 15. The Ld A.R also placed reliance on the order dated 17.8.2011 passed by the co-ordinate bench in the case of Mr. Mukund N Shah in ITA No.4311/Mum/2009. We have carefully perused the same and find that the said decision also does not come to the support of the assessee. The assessee before the Tribunal filed a return of income declaring a total income of ₹ 30,00,223/-. Later he realised that he has failed to disclose long term capital loss and accordingly filed a revised return of income within the time limit prescribed u/s 139(5) of the Act. The AO took the view that the assessee could revise the loss, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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