9911796707
TMI Blog1999 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... s right in law in holding that the assessee is entitled to carry forward the business loss although the return was filed pursuant to the notice under section 148 of the Income-tax Act, 1961 ?" The facts, as found by the Appellate Tribunal, are that the assessee did not file a return under section 139(1) of the Act. Notice under section 148 was issued and served on the assessee on May 8, 1984. Pursuant to the notice he filed a return declaring a loss of Rs. 3,13,820 on January 8, 1985. The assessment was completed under section 143(3) on May 13, 1985, determining the loss at Rs. 3,11,166. As according to the Assessing Officer no return was filed under section 139 and as no loss was determined pursuant to any return under section. 139, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that where the return filed in response to a notice under section 148 is within the time allowed under section 139, the assessee is entitled to carry forward and set off of loss. While coming to the said conclusion their Lordships have followed the judgment of the Madhya Pradesh High Court in the case of Co-op. Marketing Society Ltd. [1983] 143 ITR 99. Respectfully following these decisions, we hold that the Commissioner of Income-tax (Appeals) is fully justified in holding that the assessee is entitled to carry forward of business loss computed. We uphold his order. The departmental appeal is dismissed."(underlining by court) The question for consideration is whether loss determined pursuant to the return filed after service of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 139(2). He, therefore, submits that the return filed by the assessee pursuant to the notice issued under section 148 could not be taken to have been filed under section 139 at all. We are not at all impressed by the submission of learned senior standing counsel. This question came up for consideration before a Full Bench of the Karnataka High Court in Kareemsons Pvt. Ltd. v. CIT [1992] 198 ITR 543. In this case, the Full Bench was concerned with the assessment year 1978-79. Before the Full Bench, the assessee contended that the return filed pursuant to the notice under section 148 should be treated as a return under section 139(4) as the same was filed prior to the making of the assessment order and as that was filed within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not change simply because there was no deeming provision under section 148(1) is it stood in the relevant year that a return filed pursuant to the notice under section 148(1) will be deemed to have been filed under section 139. The submission of senior standing counsel that a return filed pursuant to the notice under section 148 can be taken to have been filed under section 139 only after the amendment made under section 148 and not prior to that, does not seem to be persuasive at all. Simply because the amendment was made after the assessment year 1983-84, it does not mean that the position which stood after the amendment, could not exist at all prior to that. The catena of authorities clearly indicate that if a return is filed within the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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