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TMI Blog2024 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to claim loss, so as to carry forward in the next year for set off. On perusal of the return of income along with the computation of income placed on record it is apparent that the petitioner has not made any claim for the loss incurred by the petitioner out of derivative transactions for Assessment Year 2015-16. It is also pertinent to note that at the time of assessment proceeding also the petitioner has not sought to file a revised return of income, claiming the carry forward of loss for the AY 2015-16. Assessment Order u/s 143(3) of the Act is already passed by the AO on 15.12.2017 for Assessment Year 2015-16. Therefore the Assessment for Assessment Year 2015-16 for all intents and purpose has come to an end and has achi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Chintan Dave for the petitioner and learned Senior Standing Counsel Mr. Nikunt Raval for the respondent no. 3. 2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: (A) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus and/or an appropriate writ, order or direction, for quashing and setting aside the impugned order dated 09.10.2019 passed by the respondent no. 1 authority; (B) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the operation, execution and implementation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Year 2015-16 vide Assessment Order dated 15.12.2017. 3.4. The petitioner thereafter filed return of income for Assessment Year 2016-17 on 30.03.2017 declaring total income of Rs. 2,09,140/-. The petitioner had earned a profit of Rs. 80,18,157/- for Assessment Year 2016-17 on account of derivative transactions and accordingly adjusted the unabsorbed loss amounting to Rs. 2,52,12,010/- incurred by the petitioner in the Assessment Year 2015-16 and after adjustments, the petitioner claimed for carry forward of remaining loss amounting to Rs. 1,87,70,685/- as unabsorbed business loss to be adjusted in subsequent Assessment Years. 3.5. The Assessing Officer however, while framing the scrutiny assessment for 2016-17 after issuance of notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 4. Learned advocate Mr. Chintan Dave appearing for the petitioner submitted that the petitioner had shown genuine hardhship by two cogent reasons that the petitioner had engaged a part time unqualified accountant who was not having the knowledge about claiming the loss in return of income and that the return of income claiming loss should be filed before the due date of return, so as to enable the petitioner to carry forward the same as per the provisions of the Act. It was further pointed out that the mother of the petitioner was not well and therefore the petitioner had a genuine cause for not filing the return in time. 4.1. It was therefore submitted that considering the provision of Section 119(2)(b) of the Act, the respondent no. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving heard the learned advocates appearing for the respective parties and considering the facts of the case, it is not in dispute that the petitioner has not claimed the carry forward of loss of Rs. 2,52,12,010/- arising out of the derivative transaction for Assessment Year 2015-16 in the return of income filed by the petitioner for Assessment Year 2015-16 on 29.03.2016. 7. It would therefore be germane to refer to the provision of Section 119(2)(b) of the Act as under: 119(2)(b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise [any income-tax authority, not being a [a Joint Commissioner (Appeals)] to admit an application or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same was not even claimed by the petitioner in the original return of income. 12. Section 139(3) of the Act provides for filing return of income so as to enable the assessee to carry forward if the return is filed within time as per Section 139(1) of the Act. 13. Therefore, there was no question to condone the delay to carry forward such loss by the petitioner, moreover, the petitioner has also failed to show any hardships, much less any genuine hardship for filing the return of income for Assessment Year 2015-16 belatedly on 29.03.2016. It is also appearing from the impugned order passed by the respondent no. 1 that the petitioner is habitual in late filing the return of income from Assessment Year 2011-12 to 2017-18 in the month of Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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