TMI Blog2018 (6) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 132 of the Act, the time to file the return within the meaning of Section 139(3) of the Act has to be regarded as the reasonable time afforded by the consequent notice under Section 153A (1)(a). When search operations are conducted under Section 132 the obligation of the assessee to file any return remains suspended till such time that a notice is issued for such purpose under Section 153A(1)(a) of the Act. If the return is filed by the assessee within the reasonable time permitted by such notice under Section 153A(1)(a) of the Act, such return would then be deemed to have been filed within the time permitted under Section 139 (1) of the Act for the benefit under Section 139(3) of the Act to be availed of by the assessee. - ITAT No. 19 of 2015 GA No.246 of 2015, ITAT No.20 of 2015 GA No. 247 of 2015 - - - Dated:- 25-4-2018 - Sanjib Banerjee And Abhijit Gangopadhyay, JJ. For the Petitioner : Mr. J. P. Khaitan, Sr. Adv. For the Respondent : Mr. P. K. Bhowmick, Adv. ORDER The Court : These two matters are connected and arise out of a common search and seizure operation carried out in respect of the same assessee. The essential facts are not in dispute, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rward the losses incurred in assessment year 2004-05. Indeed, the relevant assessing officer sought to suo motu rectify his order of December 21, 2006 by expressly incorporating the permission therein to carry forward the loss. The Commissioner, in exercise of his authority under Section 263 of the Act, found the rectification which was carried out by the assessing officer to an order of assessment passed earlier was not proper. In the same breath, the Commissioner noticed the principle that whether the carried forward loss from a previous year could be adjusted against the income of a subsequent year would be a matter of consideration in course of the relevant subsequent year and not at any other stage. However, by a further order passed under Section 263 of the Act, the Commissioner set aside the order of assessment pertaining to the assessee for the year 2006-07 wherein the carried forward loss from the assessment year 2004-05 was permitted to be set off against the assessee s income in assessment year 2006-07. Such order of the Commissioner passed under Section 263 of the Act was not as a consequence of the order of assessment for the assessment year 2004-05 dated December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing officer who deals with the assessment of the subsequent year. The third issue is answered first since both the Commissioner and the Appellate Tribunal noticed a judgment of this Court reported at 273 ITR 119 (TSAI Tea Enterprises v. CIT). Indeed, on the basis of the reasoning as indicated in TSAI Tea Enterprises, the Commissioner dealing with the order of rectification passed by the Assessing Officer observed that the rectification was redundant since the issue as to whether the carried forward loss could be availed of by way of any deduction had to be considered while considering the return for the relevant assessment year in which the carried forward loss is put up as a deduction and is not a matter that can be gone into at any other time. The third question is, thus, answered in the affirmative. Before venturing to answer the first two questions, the relevant part of Section 153A(1) of the Act needs to be noticed: 153A. Assessment in case of search or requisition.- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g words of Section 153A(1) of the Act, till such time that a notice was issued to him under clause (a) of such sub-section. If such is the meaning of Section 153A(1) of the Act, the operation of Section 139(3) of the Act qua the time available for filing a return in order to avail of the benefit of carrying forward any loss stands extended till a return is called for under Section 153A(1)(a) of the Act and such return is filed, provided the return is filed within the time indicated in the relevant notice under Section 153A(1)(a) of the Act. There can be no dispute to such being the effect of Section 153A(1)(a) of the Act. Unfortunately, the notice issued under Section 153A(1)(a) of the Act is not available in the records relied upon by the parties nor is there any reference to the date of such notice in any of the orders appended to the papers. Indeed, the time permitted by the relevant notice under Section 153A(1)(a) of the Act for the assessee to file the return is also not available. As recorded above, it is the submission of the assessee that such notice was received by the assessee on March 27, 2006 and it afforded a month s time to the assessee to file the assessee s retur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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