Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2019 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (3) TMI 15 - HC - Income TaxCarry forward of business loss - Distinction of return filed u/s 139(1) & 139(3) - original return filed u/s 139(1) within time declaring positive income - later revised return u/s 139(5) filing declaring loss - whether the revised return filed u/s 139(5) can be treated as return u/s 139(3) - HELD THAT:- What we find is that carry forward of loss with respect to the two heads of income; being 'profits and gains on business or profession' and 'capital gains' has been culled out from Section 139(1) and a specific provision made under Section 139(3). The filing of a return under Section 139(3) alone would enable such claim of carry forward. A loss return can definitely be filed under Section 139(1). But the same would be restricted to the set off being claimed in that relevant previous year without any claim for a carry forward of loss which remains after set off. True Section 139(3) makes applicable the provisions of the Act as if it were a return under Section 139(1). Hence, if a return is filed under Section 139(3), necessarily, the assessee could avail of the benefit under Section 139(5) for filing a revised return which would be treated as the original return filed under Section 139(3). When a return is originally filed under Section 139(1), the enabling provision under Section 139(5) to file a revised return only enables the substitution or revision of the original return filed. On a revised return filed, it can only be a return under Section 139(1) and not one under Section 139(3). This compelling distinction persuades us to set aside the order of the Tribunal. The assessee originally filed a 'nil' return with positive income under Section 139(1). When a revised return under Section 139(5) is filed, it only substitutes the original return filed under Section 139(1). The return hence permits set off of the loss against the income of that relevant previous year. What remains after such set off can not be carried forward for reason of the revised return not being deemed to be one under Section 139(3). - Decided in favour of the Revenue.
|