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TMI Blog1991 (8) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act, 1961, which read as follows : " 1. Whether, on the facts and in the circumstances of the case, the return filed by the assessee on May 13, 1980, before the normal date of limitation for assessment for the year 1978-79 could be deemed to be a return under section 139(4) despite the fact that a notice under section 148 had been issued by the Income-tax Officer on November 27, 1979 ? 2. If the answer to the above question is in the negative, whether the assessee is entitled to carry forward of loss declared in a return filed in response to a notice under section 148 ? " All the relevant facts are found in the order of the Division Bench to which one of us was a party. In response to the notice issued on November 27, 1979 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; since the assessee failed to file a return under section 139(1), the assessee cannot take advantage of a proceeding initiated under section 148 to claim a loss to be determined thereunder, so that it can be carried forward under section 72 read with section 80 ; learned counsel urged that the assessee cannot take advantage of his own default in failing to file the return at an appropriate time earlier to have the loss determined ; the object of section 147, it was contended, was to assess the escaped income and the proceeding thereunder is solely for the benefit of the Revenue. The questions referred are to be answered with reference to the provisions of the Act governing the relevant assessment year such as sections 80 and 139(4) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 139 would also be considered as a return filed within the time allowed under sub-section (1). A loss return " being the return of It minus income " (a phrase used by the Supreme Court in another decision in CIT v. Harprasad and Co. P. Ltd. [1975] 99 ITR 118 ; AIR 1975 SC 1282), such a return also would be a return to be considered by the Incometax Officer. The Supreme Court had, at page 1286 of AIR, stated thus : " From the charging provisions of the Act, it is discernible that the words 'income' or 'profits and gains' should be understood as including losses also, so that, in one sense 'profits and gains' represent 'plus income' whereas losses represent 'minus income' : CIT v. Karamchand Premchand Ltd. [1960] 40 ITR 106 ; AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise. The right given to the assesses under section 139(4) by the Act cannot be lost, merely because the Revenue has instituted proceedings under section 147, in the meanwhile. The right to file a return, falling within section 130(4), is as much a statutory right vested in the assessee, as is the power vested in the Assessing Officer to net in the escaped income for taxation under section 147. There is no reason to read the two provisions as in conflict with one another, or to read one provision as overriding the other ; both can stand harmoniously to arrive at the true taxable income as demonstrated by the decision of the Supreme Court in the aforesaid Kulu Valley Transport's case [1970] 77 ITR 518. Section 80 of the Act, during the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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