TMI Blog2012 (8) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... it is found to be genuine, then such loss in this year cannot be allowed to be carried forward to subsequent year for set off as the loss return was not filed within the time specified u/s 139(3) of the Income-tax Act - revised return of income is nonest – against assessee - I T APPEAL NO. 81(BANG.) OF 2011 - - - Dated:- 30-3-2012 - SMT. P. MADHAVI DEVI, JASON P BOAZ, JJ. Balram R. Rao for the Appellant. Saravanan B. for the Respondent. ORDER Smt. P. Madhavi Devi, Judicial Member This appeal is filed by the assessee. The appeal is directed against the order of the Commissioner of Income-tax - I at Bangalore dated 2.11.2010. The appeal arises out of the order passed u/s 143(3) of the Income-tax Act, 1961. 2. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the assessee. 4. Aggrieved, the assessee preferred an appeal before the CIT(A) challenging the non consideration of the revised return filed u/s 139(5) of the Income-tax Act by the assessing authority. This ground was raised as additional ground before the CIT(A). In the additional ground, the assessee also challenged the disallowances and additions made by the assessing authority. The assessee also submitted written submissions before the CIT(A) and the CIT(A) called for the remand report from the AO on these written submissions. The Assessing Officer submitted the remand report and the assessee also submitted his rejoinder to the remand report. After considering the rival submissions, the CIT(A) observed that in the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act was null and void. He also held that the claim of the assessee for the loss return is also not acceptable and even if it is found to be genuine, then such loss in this year cannot be allowed to be carried forward to subsequent year for set off as the loss return was not filed within the time specified u/s 139(3) of the Income-tax Act. 5. Aggrieved, the assessee is in second appeal before us. 6. The learned counsel for the assessee while reiterating the submissions made by the assessee before the authorities below placed reliance upon the decision of the Tribunal in the case of Sujani Textiles (P.) Ltd. v. Asstt. CIT [2004] 88 ITD 317 (Mad.), wherein it was held that if the assessee has filed a loss return under sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us on 14.3.2012. 9. Having heard both the parties and having considered the rival contentions, we find that the assessee has filed its original return of income showing positive taxable income, while in the revised return of income the assessee claimed loss to be carried forward. The main reason for holding that the revised return was nonest is that a loss return has to be filed within the time specified in sub-sec. (3) of sec. 139 of the Income-tax Act. For proper appreciation of law, the provision of sec. 139(3) is reproduced here under : "(1) and (2)** ** ** (3) If any person who has sustained a loss in any previous year under the head 'profits and gains of business or profession' or under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completion of the assessment, whichever is earlier : Provided that where the return relates to the previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year." 11. The learned counsel for the assessee relying upon the provisions of sub-sec. (5) of sec. 139 of the Income-tax Act has submitted that the assessee has filed the original return under sub-sec. (1) of the sec. 139 and subsequently having discovered the omission of the claim of loss has filed a revised return within the time prescribed thereunder, and, therefore, according to him the revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(1) of the Income-tax Act, it should have taken this loss into consideration and should have filed the return u/s 139(3) of the Income-tax Act. Having filed the original return of income u/s 139(1), the assessee cannot later on file the revised return of income claiming the loss on the ground that it was discovered subsequently. This argument of the assessee is not acceptable for the reasons stated above. In view of the same, we are in complete agreement with the findings of the CIT(A) that when the assessee is claiming the loss for the relevant assessment year and also claiming the loss to be carried forward of the loss of 2003-04 and 2004-05 respectively, then the assessee was required to file the return u/s 139(3) of the Income-tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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