TMI Blog2005 (4) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... for further extension, the assessee can well have presumed under the belief that its request for extension of time for furnishing the return had been granted and since the Commissioner of Income-tax had not applied his mind to such relevant aspect of the matter, the Commissioner of Income-tax refusing such manifest error of law was quashed. For the reasons stated above, the question referred to us, is answered in the affirmative in favour of the assessee and against the Department - - - - - Dated:- 15-4-2005 - Judge(s) : R. K. AGRAWAL., RAJES KUMAR. Keyword(s) : Carry Forward And Set Off Referred Case(s) : 215 ITR 114, 202 ITR 532, 148 ITR 214, 113 ITR 772, 110 ITR 726, 132 ITR 631 JUDGMENT The Income-tax Appellate Tribunal, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income-tax (Appeals) accepted the plea of the assessee and allowed the appeal. The Revenue filed an appeal before the Tribunal which has been dismissed. The Tribunal accepted the claim of the assessee relying upon the decision in the case of Harmanjit Trust v. CIT reported in [1984] 148 ITR 214 (P H). Heard learned standing counsel appearing on behalf of the Revenue, and Sri V. Gulati appearing on behalf of the assessee. We do not find any error in the order of the Tribunal. Admittedly, the assessee had sought extension by moving an application in Form No. 6 on July 30,1988, seeking time up to September 30, 1988, and the return was filed on August 25, 1988. A duty was cast on the officer to intimate to the assessee whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court has held that the proviso to section 139(2) which pari materia is the same as the proviso to sub-section (1) of section 139 does not contain any limitation to the effect that an application for extension of time should be filed within the time originally prescribed and that such an application can be made even after the expiry of the prescribed date.... Duty was cast on the Income-tax Officer to intimate to the assessee whether its request for extension of time for furnishing the return had been granted or refused. Thus, the predominant view in various High Courts is that the assessee can well presume that his request for extension of time for furnishing the return had been granted, unless the Income-tax Officer well in time c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to deny the benefit of carry forward of loss determined in the assessment presumably on the ground that no extension was granted. When an application is made by the assessee for extension of time and no decision is rendered on such application, it must be presumed that the Assessing Officer has allowed time to the assessee to file the return within the extended period as asked for by the assessee. Even if the application for extension is rejected but the order of rejection is not communicated, such order will be treated as non est and the assessee will be entitled to presume that the application for extension has been allowed. We are, therefore, of the view that the assessee not having been communicated of the fate of its extension appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahabad High Court in the case of Jan Daood and Co v. ITO reported in [1978] 113 ITR 772, a case which arose in writ jurisdiction in the backdrop of a prayer for extension of time for furnishing the return and for continuance of registration of a firm, it was held that when the Income-tax Officer had not communicated any order to the firm. On receipt of application for further extension, the assessee can well have presumed under the belief that its request for extension of time for furnishing the return had been granted and since the Commissioner of Income-tax had not applied his mind to such relevant aspect of the matter, the Commissioner of Income-tax refusing such manifest error of law was quashed. For the reasons stated above, the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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