9911796707
TMI Blog2012 (8) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... O that the revised return filed by the assessee u/s 139(5) of the Act was nonest. 3. The brief facts of the case are that the assessee is a domestic company which is engaged in the business of forest products. The assessee filed its return of income on 30.10.2004 declaring an income of Rs.16,61,006/-. A revised return was filed on 24.10.2005 declaring a loss of Rs.32,92,809/-. During the assessment proceedings u/s 143(3) of the Income-tax Act, the Assessing Officer observed that in the original return of income, the assessee has shown positive income while in the revised return the assessee as shown positive income from business but a huge loss under income from other sources which has resulted in negative income. He observed that the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest income from F.Ds. etc. In the revised return, a new item has been introduced under the source 'sale of rubber tree' under the head 'business income'. After applying Rule 7A of the Income-tax Rules 1962 and under the head 'other sources', drastic changes have been made. He observed that for the first time, it has been shown that the assessee owns bulldozers, which it given on hire and earns hiring charges and also claimed huge depreciation and expenses incurred in maintenance of these bulldozers besides netting of the interest income received from FDs with the interest paid to the banks for loan received from bank for rubber plantation. He observed that after claiming the loss, it is pleaded that the loss return should have been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sub sec. (5) thereof, again within the prescribed time limit, the Assessing Officer is bound to take cognizance of the revised return, because the original return is replaced by the revised return. He also placed reliance upon the decision of 'A' Bench of this Tribunal in the assessee's own case for the assessment year 2003-04, wherein the Tribunal has directed the AO to reconsider the claim of the assessee under Rule 7A of the Income-tax Rules. He submitted that even if the assessee has not claimed the loss and if from the facts investigated at the time of assessment it emerges that the assessee is entitled to a particular relief provided in law, it is obligatory on the part of the Assessing Officer to draw the attention of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, or sub-sec. (1) or sub-sec. (3) of sec. 74, or sub-sec. (3) of sec. 74A, he may furnish, within the time allowed under sub sec. (1), a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, an all the provisions of this Act shall apply as if it were a return under sub-sec.(1)." 10. From a literal reading of the above provision, it is to be seen that whether any person claims a loss for any previous year and also claims that the loss or any part thereof should be carried forward, then the return has to be furnished within the time allowed under sub-sec. (1) of the sec. 139 of the Income-tax Act. In the case before us, the original return filed by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income, the assessee has not claimed the loss. Sub sec. (5) provides that where the assessee discovers any omission or a wrong statement, then he can file a revised return. Where the wrong statement or omission results in the claim of loss, then whether the return filed under sec. 139(5) is to be considered or not is to be now seen. As held by the Hon'ble Gauhati High Court in the case of Sunanda Ram Deka v. CIT [1994] 210 ITR 988, the requirement u/s 139(5) is that the omission or wrong statement in the original return must be due to a 'bonafide' inadvertence or mistake on the part of the assessee. In the case before us, the assessee has claimed that it has erroneously omitted to claim the loss from the head 'income from other sources'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) and assessee's appeal is accordingly dismissed. The decisions relied upon by the learned counsel for the assessee are distinguishable on facts. In the case of Sujani Textiles (P.) Ltd., (supra) the Tribunal has given a finding that where the assessee had filed the loss return u/s 139(3) within the time allowed by law and the revised return of income showing higher amount of loss was also filed within the time allowed by law then the revised return replaces the original return. But in the case before us, the assessee has not filed the return u/s 139(3) of the Act within the time allowed by law but has filed the revised return claiming the loss u/s 139(5) of the Act, therefore, it cannot be said that the revised return of income replaced t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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