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TMI Blog2017 (3) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... ly we uphold the order passed by Ld CIT(A) on this issue. - decided against assessee - I.T.A. No. 1806/Mum/2013 - - - Dated:- 22-3-2017 - Shri B.R. Baskaran (AM) Shri Ravish Sood (JM) For The Assessee : Shri Ashok J. Patil For The Department : Mrs. Jyotilakshmi Nayak ORDER Per B.R. Baskaran (AM) :- The appeal filed by the assessee is directed against the order dated 5.12.2012 passed by the learned CIT(A)-32, Mumbai and it relates to A.Y. 2009-10. The assessee is aggrieved by the decision of the learned CIT(A) in holding that the short term capital loss of ₹ 10,34,489/- claimed by the assessee cannot be carried forward for set off to the succeeding year. 2. We have heard the parties and perused the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and gains of business and profession or capital gains and hence both the provisions shall squarely apply to the facts of the instant case. 5. We notice that the learned CIT(A) has analyzed the issue in detail and for the sake of convenience, we extract below the relevant observations made by the learned CIT(A) :- 3.3 I have considered the arguments of the Ld AR and perused the provisions of section 80 and 139(3) which read as under :- Section 80: Notwithstanding anything contained in this Chapter, no loss which has not been determined in pursuance of a return filed [in accordance with the provisions of sub-section (3) of section 139] shall be carried forward and set off under sub-section (1) of section 72 or sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of sub-section (3) of section 139 was not present in section 80 which deals with carry forward of losses. It is only after amendment of section 80 w.e.f 1/4/89 that the carry forward has been linked to provisions of section 139(3) also. The plea of the assessee that u/s. 139(3) it is mentioned that the assessee may furnish a return of loss would mean that the section 139(3) applies only where total income returned is a loss and not in cases where the total income returned is positive income though there is loss which has been sustained by the assessee under the head business or profession and or other income, is not correct. The legislature in its wisdom has in section 139(3), instead of using the expression If any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bulk carriers 249 ITR 449(SC) held that statute or any enacting provision therein must be so construed as to make it effective and operative and one provision of the act should be construed with reference to the other provision in the same act so as to make it consistent enactment of whole statute. Following ratio of the above decision it is clear that meaning of the expression 'return of loss' as used in the context of the provisions of section 139(3) has to be necessarily construed as return qua loss under the head income from business or profession or capital gains and not qua total income only as offered in return. If it is not interpreted so, then it may lead to absurd results because then a person showing nominal positiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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