9911796707
TMI Blog1996 (1) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Act, 1961, can be treated as return filed under section 139(2) of the Income-tax Act, 1961, and the benefit of the loss assessed be allowed to be carried over for future set-off ? " Question proposed for the year 1982-83 : " Whether, on the facts and circumstances of the case, the Tribunal was right in law in not allowing carry forward and set-off of loss of the earlier year ?" On hearing learned counsel for the parties and the Department, there is no controversy with regard to the legal position. If the return as filed on November 10, 1983, with regard to the assessment year 1980-81 could be considered as having been legally and properly filed within the grant of extension of time for filing the return, then the assessee can g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 31, 1981 (two years expired on March 31, 1983), the return could not be said to have been filed under the provisions of section 139(4) of the Act. As a consequence the claim for carrying forward of the loss was not accepted confirming the decision of the Income-tax Officer. Further appeals to the Income-tax Appellate Tribunal, Cochin Bench, received a further endorsement to the conclusion that the return could not be said to have been filed under the provisions of section 139(4) of the Act. The Tribunal has elaborately considered the basic question as to whether the return filed on November 10, 1983, could be said to have been filed under a legal and proper order of extension of time, apart from the statutory provision of filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 30, 1983. The last one was on September 30, 1983. Although these applications have been filed before the Income-tax Officer, these are not evidences on two vital issues. First the time for which the extension was required and second the assessment year for which the extension was required. Let us assume that it is not very material regarding the time required because the next application for extension must have been presumably filed after the time requested for had expired. However, the real difficulty arises in the absence of any noting regarding the assessment year. As far as the applications for extension of time up to June, 1981, are concerned, we can accept the assessee's contention that all these applications would refer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1981, and the assessment in regard thereto is to be completed within a period of two years thereafter ending on March 31, 1983. There is no dispute that the due date for filing a regular return for the year in question would be June 30, 1980. Even on probabilities an application for extension could be understood to have been made some time in the month of June, 1980. The application dated June 2, 1981, and that too only on the basis of the zerox copies of the despatch register in regard thereto, could be the one that could be contemplated. It is seen that the return is filed on November 10, 1983. The above extract would show that the last date would be September 30, 1983. Suffice it to state that even from this half-hearted and haphazard a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139 of the Act. On any count it cannot be considered in any way that the return in question dated November 10, 1983, could be the one under section 139(4) of the Act on the basis of the factual material that is laid on record before us. In fact in view of this factual position on record, there is no question of treating the return as filed under section 139(2) of the Act ; needless to say that consequential benefits could not even be contemplated in the matter of carrying forward for set-off for the subsequent assessment year. It is hardly necessary to specify that the question for the year 1982-83 is only in the nature of an inevitable consequence of the position discussed above. For all the above reasons the references stand reject ..... X X X X Extracts X X X X X X X X Extracts X X X X
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