TMI Blog2005 (2) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... head income from capital gain which was omitted to be disclosed in the original return filed under s. 139(1) and whether the assessee would be entitled to carry forward such loss for set off against the income of the subsequent years in view of specific requirement of s. 139(3) of filing the return for claim of such loss within the time as allowed under s. 139(1). 4. The first appellate authority, when the issue came before it for hearing, dismissed the appeals of the assessee holding that the assessee has incurred the loss under the head income from capital gain, the assessee has to file a return under s. 139(3). Sec. 139(5) may enable an assessee to file a revised return of income declaring therein a loss which was omitted to be disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return already processed. It was vehemently submitted that s. 139(3) requires for filing of the return within the time as prescribed under s. 139(1). The original return was filed within the time prescribed and, therefore, the assessee should be allowed to carry forward short-term capital loss by rectifying the return already processed. The interpretation taken by the authorities below that the return in which the loss is claimed must be filed within the due date would tantamount to that the revised return in the case of loss incurred by the assessee cannot be filed, that cannot be the intention of the law. 7. The learned Departmental Representative on the other hand relied on the order of the CIT(A). 8. We have considered the riva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to file the return within the time allowed under s. 139(1) and all the provisions thus shall apply as if it was returned under s. 139(1). Sec. 139(4) deals with the belated return, s. 139(4A) deals with the return to be filed by trust or charitable institution, s. 139(4B) applied to the return to be filed by the political parties. Sec. 139(5) stipulates that if a person after furnishing return under s. 139(1) discovers any omission or wrong statement in the return, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year, or before completion of the assessment whichever is earlier. The assessee in this case has filed the revised return within time as is permitted, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 139(1) and those, which are to be filed under s. 139(3). Sec. 139(3) deals where the assessee claims loss under the head income from business or capital gain, while s. 139(1) deals with the return when the income exceeds maximum chargeable to income-tax. Sec. 139(5) empowers the assessee to revise the return furnished under s. 139(1). The assessee has not claimed any loss when he filed the return under s. 139(1). The assessee claimed the loss for the first time in the revised return which was filed although within the time allowed under s. 139(5) but not within the time as permissible under s. 139(1). When the legislature has imposed a condition for claiming carry forward of the losses, in our opinion, the assessee is bound to comply wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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