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TMI Blog2007 (11) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... facts necessary for decision of the aforesaid question are that the assessee is an individual. He did not file any return for the assessment year 1984-85. On May 18, 1985, the Assessing Officer issued a notice to the assessee under section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") requiring him to furnish return of his income in respect of the said year. The assessee filed his return in response to the notice on November 25, 1987. In this return he declared a loss of Rs. 3,15,200. The Assessing Officer processed the return and determined the loss at Rs. 1,280. However, the assessee was not permitted to carry forward the loss on the ground that the loss return had not been filed within the time allowed under section 139(3) of the Act. 3. The assessee filed an appeal and the Commissioner of Income-tax (Appeals) held that the return in question had been filed within the time provided in section 139(4) of the Act and hence the assessee was entitled to carry forward the losses in view of the decision of the Calcutta High Court in Presidency Medical Centre P. Ltd. v. CIT [1977] 108 ITR 838 and the decision of the Madhya Pradesh High Court in Co-ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of the relevant assessment year; issue a notice to him and serve the same upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed." 9. Section 139(3), at the relevant time, read as follows "If any person who has not been served with a notice under sub-section (2), has sustained a loss in any previous year under the head 'Profits and gains of business or profession' or under the head 'Capital gains' and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) of section 74 or sub-section (3) of section 74A, he may furnish, within the time allowed under sub-section (1) or within such further time which, on an application made in the prescribed manner, the Income-tax Officer may, in his discretion allow a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39(4) provided that if any person had not filed the return within the time allowed to him under sub-section (1) or sub-section (2) he may, before the assessment is made furnish the return for any previous year within the time prescribed in clause (b) of sub-section (4). The relevant portion for our purpose is sub clause (iii) which provides that the return relates to a previous year relevant to any other assessment year and has been filed within 2 years from the end of such assessment year. In this case the relevant assessment year was 1984-85, the end of the assessment year was March 31, 1985. The return was, therefore, required to be filed under section 139(4) latest by March 31, 1987. The return was actually filed on November 25, 1987, beyond the period of 2 years. Therefore, it cannot be treated to be a return filed under section 139(4) of the Act. Furthermore, the return under section 139(4) must be a voluntary return and not a return filed in pursuance to notice. 15. The next question which arises is whether the Tribunal was right in holding that the return filed under section 148 should be treated to be a return filed under section 139(2) and, therefore, the benefit of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears pursuant thereto. The assessee filed returns showing loss and losses were computed by the Income-tax Officer for both the years. However, he declined to carry forward the losses for the purpose of set off during the subsequent years on the ground that the return was not filed within the time allowed in section 139 of the Act. The court did not go into the question whether an assessee would be entitled to the benefit of a return filed pursuant to a notice under section 139(2) of the Act on the ground that the return filed by the assessee was within the time prescribed under sub-section (4) of section 139 of the Act. 19. On behalf of the Revenue reliance has been placed upon the judgment of the Kerala High Court in Smt. Ashima Hariharan v. CIT [1996] 220 ITR 89. In that case, the relevant year was 1980-81. The assessee did not file the return by the due date. Notices were issued to the assessee under section 148 of the Income-tax Act, 1961, in October, 1983, and the assessee filed her return on November 10, 1983. The Income-tax Officer on assessment of the return accepted the losses, but did not permit carry forward of losses. The court held that the return had not been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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