9911796707
TMI Blog1991 (11) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee submitted his return of income on February 19, 1979. The assessment was completed under section 143(3) on a net loss of Rs. 35,380. The Income-tax Officer, however, did not allow the loss to be carried forward on the ground that the return was not filed within the time prescribed under section 139(3) of the Income-tax Act, 1961, hereinafter referred to as "the Act". The assessee filed an appeal before the Appellate Assistant Commissioner which was rejected. The assessee filed a second appeal before the Tribunal. The Tribunal decided in favour of the assessee. It held that the assessee was entitled to the benefit of carry forward of the loss sustained in view of the decision of the Supreme Court in CIT v. Kulu Valley Transport Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot affect the applicability of the decision of the Supreme Court because what is important is not the fact under which Act it was delivered but the principle underlying the same. It is the ratio of the decision that is binding. We are, therefore, to find out whether there is any substantial difference between the provisions of the two Acts on the basis of which it can be said that the ratio of Kulu Valley [1970] 77 ITR 518 (SC) is not applicable to the corresponding provision of the 1961 Act. In Kulu Valley's case [1970] 77 ITR 518 (SC), the question for determination was whether section 22(2A) of the 1922 Act placed any limitation on the right of an assessee to get the benefit of losses being set off and carried forward. This sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eful comparison of the two sets of provisions, it is evident that there is no substantial difference between the two. The only perceptible difference was that, in the 1922 Act, under section 22(2A), the return of loss could have been made "either within the time prescribed by sub-section (1) or within such further time as the Income-tax Officer, in any case, might have allowed", the expression used in the corresponding provision of the 1961 Act, namely, section 139(3) was "within the time allowed under sub-section (1)". The expression "or the period extended by the Income-tax Officer" which appeared in section 22(2A) of the 1922 Act was found missing in section 139(3). However, that change too was done away with by the Taxation Laws (Amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (4) of section 139 of the 1961 Act, it would be deemed to be in accordance with law and the loss his to be determined and carried forward as a matter of course under section 72(1) read with section 80 of the Act, even though the return was not filed within the time provided by section 139. This decision of the Calcutta High Court was also followed by the Bombay High Court in Telster Advertising Pvt. Ltd. v. CIT [1979] 116 ITR 610. We are in full agreement with the aforesaid decisions of the Calcutta and Bombay High Courts. We hold that subsections (1) and (4) of section 139 are to be read together and, On being so read, an assessee is entitled to carry forward the loss if lie his filed the return after the period prescribed by sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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