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2021 (8) TMI 1217 - ITAT DELHIAssessment u/s 153A - filing of belated return in response to notice u/s 153A - denying carry-forward of loss claimed in the return filed under section 153A on the ground that return was not filed within the stipulated period of 16 days - Whether provision of the Act which would be otherwise applicable in the case of return filed under section 139(1)? - HELD THAT:- AO has not correctly interpreted the provision - If assessment proceedings in particular assessment year are pending as on the date of the search, same get abated and in consequence to notice under section 153A, assessment of such year would be subject to assessment by the revenue for the first time and the earlier return filed for the purpose of assessment would be treated as non est in law - return filed under section 153A(1)(a) is return furnished under section 139 - provision of the Act which would be otherwise applicable in the case of return filed under section 139(1) of the Act would also apply in case of return filed under section 153A of the Act. Where the assessments are not abated or no assessments are pending as on the date of the search, the return of income filed under section 139 cannot be treated as non est. In such completed assessments, addition if any can be made on the basis of the income relating incriminating material otherwise the position accepted in completed assessment has to reiterate. In the year under consideration, it is undisputed that no assessment was pending as on the date of the search and, therefore, the AO is not permitted to make changes in the whatever determined in regular assessment proceeding on the basis of the return of income filed, in absence of any incriminating material. Since in the regular proceeding, the assessee is entitled to carry forward the losses in terms of the provision of the Act, the action of the Assessing Officer in denying the carry forward of the loss on account of the late filing of the return under section 153A of the Act, is not justified. - Decided in favour of assessee.
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