9911796707
TMI Blog1996 (6) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 1988-89, on the basis of loss return submitted by the assessee on January 10, 1989, without any claim for carry forward loss and in not holding that the return so submitted was never to have been furnished in view of the provisions contained in section 139(10) read without the proviso (d) of the Income-tax Act, 1961 ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in its interpretation of sections 139(3) and 139(1) of the Income-tax Act, 1961, and was justified in law in holding that the Assessing Officer validly initiated the assessment proceeding on the basis of the loss return submitted by the assessee on January 10, 1989, and completed the assessment for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred to this court under section 256(1) of the Act for opinion of this court. We have heard Mr. J. P. Bhattacharjee, learned senior counsel, assisted by Mr. R. K. Joshi, learned counsel appearing on behalf of the assessee, and Dr. A. K. Saraf, learned special counsel appearing on behalf of the Revenue. Mr. Bhattacherjee submits that the order of the Tribunal holding that the assessee is not entitled to the benefit of section 139(10) is contrary to the established principles of law and also various provisions of the Act. According to Mr. Bhattacharjee, there are two modes of making assessment. One by the assessee himself by filing a return and the other mode is, on the failure of the assessee to furnish the return the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, supports the order passed by the Tribunal. On the rival contentions of counsel appearing on behalf of the parties it is to be seen whether the Tribunal was justified in holding that the Assessing Officer had jurisdiction to initiate a proceeding on the basis of the return filed on January 10, 1989, as the return for the purpose of assessment. Before we decide the matter in controversy, it will be apposite to look to some of the provisions of section 139 of the Act. As per sub-section (1) of section 139 of the Act, every person, if his total income or the total income of any other person in respect of which he is assessable under the Act during the previous year exceeded the maximum amount which is not chargeable to income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year relevant to the previous year during which the loss was sustained. In the instant case, the Tribunal set aside the order of the Commissioner of Income-tax (Appeals), by holding that the provisions of section 139(10) were applicable in the case of positive income or positive total income which was below the maximum amount which was not chargeable to tax. We quote the relevant portion of the Tribunal's judgment : " As indicated above, section 139(10) provides that notwithstanding anything contained in any other provision of this Act, a return which shows the total income below the maximum amount not chargeable to tax shall have to be ignored. In other words, it is seen that this sub-section (10) deals with the return whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustained. In our considered view, sub-section (10) does not make any distinction. If an assessee wants his loss to be carried forward then he may take recourse to sub-section (3). In our opinion, it is completely independent of the provisions of sub-section (10) of section 139. This position of law will be very clear if we look to the proviso (d) to sub-section (10) of section 139 of the Act which speaks that the provisions of sub-section (10) shall not apply to a return of loss which has been furnished before the thirty-first day of July of the assessment year relevant to the previous year during which the loss was sustained. If the income is below the maximum limit of chargeable income, whether there is loss or not, it will come within th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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