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TMI Blog2018 (9) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... any condonation u/s. 119(2)(b). The assessee has duly filed the return u/s. 139(1) within the due date. Thereafter, the assessee claimed the depreciation on goodwill in the revised return u/s. 139(5) which was filed on time. This claim of deprecation in the revised return cannot be denied solely on the ground that it was not claimed in the original return. The issue raised by the ld. CIT(A) for seeking condonation for delay in filing in term of section 119(2)(b) is irrelevant CIT(A) while confirming the disallowance has only referred to the time factor involved and he has not made any adverse observation on the validity of assessee’s claim otherwise. He has in fact admitted that on merits the Hon’ble Apex Court’s decision in the case of Smifs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT] is in favour of the assessee which is an undisputed fact. Accordingly, we set aside the orders of the ld. CIT(A) and decide the issue in favour of the assessee. - I.T.A. No.2695/Mum/2017 - - - Dated:- 7-9-2018 - Shri Shamim Yahya, AM And Shri Pawan Singh, JM Appellant by : Shri Ketan Ved /Ms. Urvi Mehta Respondent by : Shri Abhijeet Patanker ORDER Per Shamim Yahya, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 80 and section 139(1). He further noted that the claim of deprecation was also not specified in the tax audit report. Hence, he held that the assessee cannot be allowed any deprecation of goodwill and revised return without the auditors approval. 6. Upon the assessee s appeal in this regard, the ld. CIT(A) confirmed the action of the A.O. on the ground that the return has been filed beyond the time specified and no condonation has been sought u/s.119(2) of the Act. The order of the ld. CIT(A) in this regard may be gainfully referred as under: 3.3. I have also gone through the Sec. 119(2)(b) where the assessee or the taxpayer file the application for any claim of exemption, deduction, refund or for any other relief after the expiry of the period specified under this Act. Provision is as under : 119-(2) Without prejudice to the generality of the foregoing power: (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorize [any income-tax, authority, not being a Commissioner (Appeals)] to admit an application or claim for any exemption, deduction, refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee filed the return of income on 30-10-2005 under section 139(1) declaring certain taxable income. In such return, the assessee did not claim speculation loss. Such return was, however, revised under section 139(5) on 29-11-2006. ■ The Assessing Officer disallowed carry forward of speculation loss on the ground that the same was not claimed in the original return but in the revised return. ■ The Tribunal was of the view that once a return was revised under section 139(5) the original return filed under section 139(1) would not survive. It was found that the revised return was filed within the time prescribed. The Tribunal, thus, did not accept the Assessing Officer's view that the revised return should be treated as non-est. Accordingly, assessee's claim for carry forward of speculation loss was allowed. ■ The revenue filed instant appeal placing heavy reliance on the provisions contained in sub-section (3) of section 139 to contend that an assessee who wishes to carry forward any loss must file a return under sub-section (3) within the time permitted and only upon which the same would be treated as return under section 139(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accepting the contention of the revenue would amount to limiting the scope of revising the return already filed by the assessee flowing from sub-section (5). No such language or intention flows from such provision. ■ In view of the above, there is no error in the view of the Tribunal. The revenue's appeal is, therefore, dismissed. 10. From this decision it emanates that the assessee has an indefeasible right to revise the return filed u/s. 139(1) as per the provisions of section 139(5) on discovery of any omission or wrong statement. The assessee has explained before the authorities below that it has claimed this depreciation pursuant to Hon ble Apex Court decision in the case of Smifs Securities Ltd. (supra). It is not the case of the Revenue that this Hon ble Apex Court decision has been wrongly relied upon. Hence, the assessee s claim in the revised return cannot be denied on a technical ground that it was not claimed in the original return. 11. Furthermore examining the present case, on the touch stone of the above case law, we find that the assessee has duly filed the return u/s. 139(1) within the due date. Thereafter, the assessee claimed the depreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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