TMI Blog2015 (9) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to condone the lapse on the part of assessee in not filing the return of income for the A.Y. 2004-05 within the statutory time permitted u/s. 139(3) of the Act. In this case, the time for making such application to CBDT had expired by the time the AO issued show cause notice u/s. 154 to the assessee for the A.Y. 2006-07. Thus, the assessee was taken by surprise and could not exercise the remedies in law, even though it had very genuine and reasonable cause for not filing return of income for A.Y. 2004-05 on or before the due date u/s. 139(1) of the Act. It is not possible to allow relief to the assessee based on equitable considerations, since equity and tax laws are strangers to each other. In view of the specific provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Karnataka by various factions challenging the election. The CEO of the assessee is the Deputy Registrar of Co-operative Societies and is a deputed Government Officer on behalf of Govt. of Karnataka. He had to appear before the High Court on almost every alternate day and could not involve in the affairs of banking activities including income tax matters. The election results were declared on 3.3.2014. Thereafter, the assessee filed an appeal on 14.3.2014. Hence the delay in filing appeal before the Tribunal. 3. The contents of the application for condonation of delay have been verified by Mr. Venkateshappa M., the CEO of the assessee. Considering the reasons given the application for condonation of delay, we are satisfied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined a loss in the previous year under the head 'profit and gains of business or profession' and claims for the loss or any part thereof to be carried forward u/s. 72(1) (3) or 74A(3), then he has to file a return of loss in the prescribed form within the time allowed u/s. 139(1) of the Act. In the event of failure to file the return as aforesaid, assessee cannot seek to claim carry forward of loss for set off in the subsequent assessment years, as laid down in section 80 of the Act. 7. The loss incurred by the assessee which is available for carry forward in the various assessment years are as follows:- Sl. No. Assessment year Loss 1. 2002- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ava Day. All State Govt. office, Banks are closed on this day. Assessee being a co-operative bank was also closed on 1.11.2004 being a public holiday. Assessee was under bonafide belief that Income Tax Department is closed on 1st November. The assessee submitted that time laid down in section 139(1) is not mandatory, but directory in nature. The AO, however, did not accept the claim of assessee and he passed an order u/s. 154 of the Act withdrawing set off of loss for A.Y. 2004-05, which resulted in a taxable total income of ₹ 2,93,99,289. 10. On appeal by the assessee, the CIT(Appeals) confirmed the order of AO. 11. Aggrieved by the order of CIT(A), the assessee has preferred the present appeal before the Tribunal. 12. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness is so re-established, reconstructed or revived, and - (a) it shall be set off against the profits and gains, if any, of that business or any other business carried on by him and assessable for that assessment year; and (b) if the loss cannot be wholly so set off, the amount of loss not so set off shall, in case the business so re-established, reconstructed or revived continues to be carried on by the assessee, be carried forward to the following assessment year and so on for seven assessment years immediately succeeding. 13. It is seen from the records that ld. counsel for the assessee has filed before us a copy of return of income filed by the assessee for A.Y. 2004- 05. The computation of total income and determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for that year ought to have been filed in accordance with the provisions of section 139(3) of the Act i.e., on or before the due date for filing return of income. In fact, the said condition is also necessary for carry forward of loss for set off in future years. Admittedly, in the case of assessee, the return of income was not filed within the due date and therefore the loss for A.Y. 2004-05 has not been determined in accordance with the provisions of sub-section (3) of 139 for A.Y. 2004-05. Such a loss cannot be therefore set off against the profits of A.Y. 2006-07. In terms of section 119(2)(b) of the Act, the CBDT alone has the power to condone the lapse on the part of assessee in not filing the return of income for the A.Y. 2004-05 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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