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TMI Blog2022 (3) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the learned CIT(A) is contrary to law and facts and circumstances of the case. 2.1 The learned CIT(A) erred in directed the Assessing Officer to allow the benefit of carry forward of loss to the assessee as per the revised return, treating the first return filed without Tax Audit Report as valid return of income. 2.2 It is submitted that the decision of the Hon'ble ITAT in the assessee's own case for AY 2003-04 has not been accepted by the Department and appeal u/s 260A was filed before the Hon'ble High Court. The appeal was dismissed by the Hon'ble High Court with the direction to obtain the Committee of Dispute and to file the appeal afresh to decide the issue on merit and hence the issue has not reached finality. 2.3 It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing appeal by the Revenue is condoned and appeal is admitted for adjudication. 5. Brief facts of the case are that the assessee is a statutory body came into existence through an enactment by legislative assembly by Government of Tamil Nadu and is engaged in the business of generation, transmission and distribution of electricity in the State of Tamil Nadu. The appellant prepares its financial statement in compliance with the provisions of Electricity Supply Act, 1948. The appellant company comprises of 67 accounting units, for generation, transmission and distribution spread all over the State of Tamil Nadu. The annual accounts are prepared after compiling information from all locations and once this compilation is over, same is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), after considering relevant facts and also by relied upon the decision of ITAT., Chennai in ITA No.1474/Mds/2007 for the assessment year 2003-04 and his predecessor CIT(A)'s decision in assessee's own case for assessment year 2003-04 in ITA No.233/07-18 dated 11.12.2008 held that when the assessee has filed original return of income within due date as prescribed u/s.139(1) and also revised return was filed within due date as per section 139(5) of the Act, then claim of the assessee towards set off of brought forward loss cannot be denied. The relevant findings of the learned CIT(A) are as under:- 9.3.1 The AO has rejected the appellant's claim for carry forward and set off of business loss on the ground that the appellant's original ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s claim of carry forward and set off of business loss." 7. The learned DR submitted that although issue involved in the present case is covered in favour of the assessee by the decision of ITAT., Chennai in assessee's own case for the assessment year 2003-04, but fact remains that the assessee is in the habit of filing return of income on the basis of provisional accounts and subsequently filing revised returns once audit is completed. Therefore, when the assessee has filed invalid return, though it was filed within due date u/s.139(1) of the Act, then even if the assessee files revised return within due date prescribed u/s.139(5) of the Act, the brought forward loss cannot be allowed to be set off. The learned CIT(A) without appreciating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o get its accounts audited by Accountant General at the first instance and thereafter the accounts are to be audited under section 44AB. Thus it is clear that the defect in the original return should have been allowed to be removed before making the assessment. Since in the course of removing the defect the assessee has filed the revised return after getting the accounts audited as per the statutory requirement then the revised return filed by the assessee should be allowed after condoning the delay giving due regard to the facts and circumstances of the case . since the delay in removing defect is not deliberate or due to negligence on the part of the assessee but due to various formalities to be complied with and as the assessee is a Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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