TMI Blog2008 (3) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Assessing Officer to treat the return filed on 27-3-2003 as a revised return under section 139(5) of the Act. It is contended that the return was rightly treated by the Assessing Officer as a belated return under section 139(4). The brief facts giving rise to this ground are as follows. The assessee filed a return of income on 31-10-2001 in which a loss of Rs. 34,83,64,480 was claimed. There is no dispute that this return was filed in time. Admittedly, it was not accompanied by the profit and loss account, balance sheet, etc. On 27-3-2003, the assessee filed another return of income in which the loss was enhanced to Rs. 37,91,62,339. The profit and loss account, balance sheet etc., were attached to this return. The Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has further drawn our attention to pages 14 to 44 of the paper book containing the annexures to the return filed on 31-10-2001 and therefrom has submitted that the balance sheet and the profit and loss account were filed along with the said return but they were not audited either under the Companies Act or under section 44AB of the Income-tax Act. He drew our attention to the judgment of the Madras High Court in CIT v. Periyar District Co-operative Milk Producers Union Ltd [2004] 266 ITR 705 in which it was held that a return of loss submitted under section 139(3) is deemed to be a return filed under section 139(1). It was, therefore, held that the return filed under section 139(3) takes the character of a return under section 139(1) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the original return and must be taken to have been filed within the time allowed under section 139(1), as required by section 139(3). In the case of CIT v. Kulu Valley Transport Co. (P.) Ltd. [1970] 77 ITR 518 it was held by the Supreme Court by a majority that section 22(3) of the 1922 Act, which enabled an assessee to file a belated return at any time before the completion of the assessment was in the nature of a proviso to section 22(1) which provided for a return to be submitted within the time fixed by a general notice and it was accordingly held that if section 22(3) is complied with then section 22(1) also must be held to have been complied with. In section 22(3) of the 1922 Act, there was provision both for filing a belated retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried forward the assessee shall file the loss return within the time allowed under sub-section (1), because sub-section (3) of section 139 is similar to sub-section (2A) of section 22 of the 1922 Act which also contained a similar requirement, notwithstanding which the Supreme Court held that the belated return of loss should be considered to be a valid return under sub-section (1) of section 22 itself. In fact, several judgments of different High Courts held that the ruling of Supreme Court in Kulu Valley Transport Co. (P.) Ltd.'s case was applicable under the 1961 Act also because the provisions of section 22 of the old Act and those of section 139 of the new Act were materially identical. However, there is another provision in the 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return filed on 27-3-2003 is a valid revised return. The revised return takes the place of the original return and the original return having been admittedly filed within the time allowed under section 139(1), the loss will have to be carried forward. The return filed on 31-10-2001 is a return of loss filed in accordance with section 139(3) and can be validly revised under section 139(5) as held by the judgment of the Madras High Court cited supra. Thus whichever way the matter is looked at, the loss claimed in the return filed on 27-3-2003 is to be carried forward to the subsequent years. The order of the CIT (Appeals) on this point is upheld and the ground is dismissed. 5.1 The second ground is that the CIT (Appeals) erred in deleting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod expenses relating to leave travel assistance scheme. The Assessing Officer disallowed the same for the same reasons on which the provisions for expenses aggregating to Rs. 2,90,40,319 were disallowed. However, the CIT (Appeals) noted that the assessee himself has stated that the aforesaid amount of Rs. 15,70,079 includes provision made on account of earlier years also. He, therefore, held that only the provision relating to the year under appeal can be allowed and directed accordingly. Whereas the department is in appeal questioning the decision of the CIT (Appeals) allowing the provision for the year under appeal, the assessee in its appeal has challenged the decision of the CIT (Appeals) insofar as it relates to the provision relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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