TMI Blog2015 (6) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) or within the time extended by the ITO. There is, as such, nothing that the Court can do to assist the assessee. Assessee Company was not entitled to carry forward and set off the business loss Tribunal was justified in law in holding that the provisions contained in Section 80 of the Income Tax Act, 1961 are substantive in nature - Decided against assesse. - ITA No. 162 of 2003 With ITA No. 163 of 2003 - - - Dated:- 18-2-2015 - GIRISH CHANDRA GUPTA AND ARINDAM SINHA, JJ. For The Appellant : Mr. S.Bagchi, Adv. with Mr.D.Mitra,Adv. For The Respondent : Ms. S.Das De, Adv. The Court : Both the appeals arise out of a common judgment dated 4 th March, 2003 passed by the 3 rd member of the Income Tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 163 OF 2003 i) Whether on the facts and in the circumstances of the case and on a correct interpretation of Sections 80 and 139 of the Income Tax Act, 1961, the Income Tax Appellate Tribunal C Bench, Kolkata misdirected itself in law in confirming that the Assessee Company was not entitled to carry forward and set off the business loss of ₹ 76,46,98,933/- determined and assessed by the learned Assessing Officer in its case vide his order dated 24 th October, 1997 passed in respect of the assessment year 1986-87 ? ii) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the provisions contained in Section 80 of the Income Tax Act, 1961 are substantive in nature ? ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the return was filed on 30 th October, 1987. The assessment for the assessment year 1985-86 after the matter had travelled upto the learned Tribunal and after the matter had reached finality, was assessed at a net loss of ₹ 103,17,30,191/-. Similarly, for the assessment year 1986-87, the loss was assessed at ₹ 76,46,98,933/-. Question arose whether the assessee was entitled to the benefit of carrying forward the losses. That question has been answered in the negative. It is this issue which is to be determined by us in the present appeal for both the assessment years indicated above. Mr. Bagchi, learned counsel appearing for the appellant/assessee submitted that the judgment of the Apex Court in the case of CIT v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 139. Therefore, a return filed before the completion of the assessment has to be treated as a return filed within the time prescribed under subsection (1) of section 139. Once that has been done, there is no reason why the loss suffered by the assessee and determined by the Assessing Officer should not be permitted to be carried forward. He added that section 80 as it stood underwent a cosmetic change with effect from 1 st April, 1985. Even with the aforesaid change when a return was filed within the time provided under sub-section (1) of Section 139 read with the deemed proviso, the benefit of carry forward losses could not have been denied to the asessee. Prior to 1 st April, 1985, Section 80 stood as follows: Notwithstanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous year under the head Profits and gains of business or profession or under the head Capital gains and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72 or sub-section (2) of section 73 or (sub-section (1) or sub-section (3) of section 74) or (sub-section (3) of section 74A), he may furnish, whithin the time allowed under sub-section (1), a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1) Section 80, as amended and as it stood on the relevant day, has been quoted above which is once again set out he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortuitous circumstance that it transpired that the assessee had really suffered loss and therefore, it transpired to be a return of loss but initially it was not a return of loss. It was a return of income. Assuming, everything submitted by Mr.Bagchi to be correct there is no wayout to help the assessee from the net of section 80 quoted above. Further submission was advanced by Mr.Bagchi that section 80 does not apply to the returns declaring income. This submission is altogether devoid of any merit. The question to ask is, is the assessee asking for benefit under sections 72,73 and 74 ? If the answer is yes, section 80 is bound to apply, whether it is a return of loss or profit ? For the aforesaid reasons in both the appeals, the que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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