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TMI Blog2004 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... 26,557, the Tribunal without deciding the question as to whether there was any reduction of loss consequent upon the filing of the second revised return on January 7, 1991 could send the matter back when there was no dispute regarding the carry forward unabsorbed depreciation?" - Both the questions are answered in the negative in favour of the assessee. - - - - - Dated:- 21-12-2004 - Judge(s) : D. K. SETH., R. N. SINHA. JUDGMENT D.K. Seth J.- The points raised: This appeal was admitted on the following two grounds: "(i) Whether, when a second revised return was filed under section 139(5) of the Act within the specified period of one year from the end of the relevant assessment order (year), the Assessing Officer is obliged to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unabsorbed depreciation. By an order dated December 31, 1990, this application for rectification was rejected on the ground that neither in the original return nor in the revised return any claim for carry forward of earlier years' loss or depreciation was made. Admittedly, it was so. On January 7, 1991, a revised return (second revised return), claiming carry forward of earlier years' loss and unabsorbed depreciation, was filed. This was not considered and assessment was made. The matter travelled in between the appeals and up to this court and ultimately the present order under appeal was passed rejecting the claim of the assessee for carrying forward the earlier years' loss and unabsorbed depreciation. The learned Tribunal in its ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to discuss the contention raised by Dr. Pal, we may 7 deal with the preliminary objections raised by Mr. Moitra. So far as the first question is concerned, it appears that the section defining "previous year" was substituted by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1,1988, prior to its substitution by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989. In the present case, as contended by Dr. Pal, the assessee was following a different accounting year other than April 1 and March 31, following. Therefore, in view of the provisions contained in section 3 as amended by the 1987 amendment effective from April 1, 1988, the fraction of the period from July 1, 1987 till March 31, 1988 was inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not seem to be of any consequence and this objection is also overruled. Section 32(2): Whether unabsorbed depreciation can be carried forward: Having regard to the facts and circumstances of the case it appears that the Tribunal in effect did not consider the implications either of section 32(2) or of section 139(5) read with section 143(1)(a), (b) and (3). Having regard to the proposition of law, we may find that section 32(2) as it stood at the relevant point of time permitted carry forward of the unabsorbed depreciation to the succeeding previous year. Therefore, according to section 32(2), the unabsorbed depreciation could very well be carried forward to the succeeding previous year and if it is so permitted and in that event that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led after the intimation is a valid return. Whether the second revised return envisages assessment under section 143(3): Section 143 postulates under sub-section (1) to accept the return as submitted either under sub-section (1) or sub-section (1A) or sub-section (1B) or to issue a notice under sub-section (2) in such situation contemplated in that sub-section and then to assess under sub-section (3) of section 143. It was open to the Assessing Officer to issue a notice under sub-section (2) of section 143. But such notice could be issued within the period provided in the proviso to sub-section (2), namely, that such notice is to be served on the assessee before the expiry of the financial year in which the return is furnished which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he situation in law as discussed above (a) the second revised return is required to be considered; (b) on account of the expiry of the period contemplated in section 143(2), in the absence of any notice, the assessment cannot be made under section 143(3); (c) it is required to be considered under section 143(1B) of the Income-tax Act, 1961. Order: In the circumstances, we set aside the order of the Appellate Tribunal and all consequential orders and remand the case for being assessed by the Assessing Officer afresh on the basis of the second revised return in the light of the observation made above in accordance with law in terms of section 143(1B). It is expected that the assessment shall be concluded within a period of three months fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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