TMI Blog2011 (12) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... sed return because the original return is replaced by the revised return, undisputedly, the assessment u/s. 153A r.w.s. 143(3) of the Act has been framed on the basis of return filed in response to notice issue u/s. 153A of the Act. Hence, now it is not open to raise contention by the revenue that return was filed beyond the prescribed time period mentioned in the notice issued u/s. 153A of the Act. The return of income filed in response to the notice u/s. 153A on the basis of which assessment in question has been framed thus has replaced the original return for determining the net income in the assessment u/s. 153A. Thus, in a sense, return filed in response to the notice issued u/s. 153A was a revised return and the assessment was re-assessment. For the purpose of levy of penalty u/s. 271(1)(c ), excess income in difference to the originally assessed income may be subject matter under the facts and circumstances of the case that the same was due to concealment of particulars of income or furnishing inaccurate particulars thereof, but for the purpose of assessment of net income, the return filed in response to notice u/s. 153A of the Act is the revised return superseding earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns filed in response to notices u/s. 153A was not allowed to be carried forward by the A.O. in view of the provisions of Section 80 of the Act. The A.O held that as per Section 80 of the Act, the loss which is not determined as per the provision of Section 139(3) of the Act cannot be carried forward. The Ld CIT(A) has upheld the action of the A.O with further observations that the assessee had filed returns of income in response to notices issued u/s. 153A of the Act beyond the time limit prescribed u/s. 139(5) for filing the revised return. Thus, the returns filed by the assessee in response to notices issued u/s. 153A of the Act cannot be regarded as revised returns replacing the original returns filed u/s. 139(1) of the Act. He accordingly did not accept the contention of the assessee that the original returns were replaced by the returns filed in response to the notices issued u/s. 153A of the Act. 5. Before us, the Ld A.R. while reiterating the above contentions made before the authorities below, submitted that undisputedly, returns of income u/s. 139(1) of the Act in the years under consideration were filed in time, hence the assessee was very much entitled to revise th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided on 30th August 2011. A copy of this decision has been furnished for the perusal of the Bench and the other side. 8. Having gone through the decision of Mumbai Bench of the Tribunal in the case of DCIT Vs. Eversmile Construction Co. Pvt. Ltd. (Supra), we find that an identical issue has been decided therein. Relevant para Nos. 9 10 thereof are being reproduced hereunder : 9. It is further important to note that the provisions of assessment in the case of search u/s. 153A etc. have been inserted by the Finance Act, 2003 with effect from 01.06.2003. These provisions are successor of the special procedure for assessment of search cases under Chapter XIV-B starting with section 158B. Whereas Chapter XIV-B required the assessment of undisclosed income as a result of search, which has been defined in section 158B(b), section 153A dealing with assessment in case of search with effect from 01.06.2003 requires the Assessing Officer to determine total income and not undisclosed income . 10. If any deduction is claimed by the assessee in the proceedings u/s 153A that cannot be rejected simply on the ground that it was not claimed in the original assessment or was disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring before him, there cannot be any scope for arguing that the assessee has been rendered powerless to even lodge a claim in respect of which deduction was not allowed earlier. The A.O is fully empowered to consider the question of deductibility as per the provision of the Act. If after going through such claim, he feels that addition is called for, he will obviously make addition and vice versa, held the Tribunal. 9. Almost similar are the facts in the present case before us as the assessee had claimed interest expenditure of loan from a Credit Co- Operative Society in the returns filed u/s. 153A which was not claimed in the returns of income filed u/s. 139(1) of the Act. The A.O had allowed the said expenditure while assessing loss. However, the increase in loss as per returns filed in response to notices u/s. 153A was not allowed to be carried forward in view of the provisions of Section 80 of the Act. The A.O. held as per Section 80 of the Act, the loss which is not determined as per the provisions of Section 139(3) of the Act cannot be carried forward. The Ld CIT(A) has upheld the action of the A.O with further observations that the assessee had filed returns of income in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-assessment. For the purpose of levy of penalty u/s. 271(1)(c ) of the Act, excess income in difference to the originally assessed income may be subject matter under the facts and circumstances of the case that the same was due to concealment of particulars of income or furnishing inaccurate particulars thereof, but for the purpose of assessment of net income, the return filed in response to notice u/s. 153A of the Act is the revised return superseding earlier return of income and the assessment based upon that original return of income. We thus following the ratio laid down by the Mumbai Bench of the Tribunal in the case of DCIT Vs. Eversmile Construction Pvt. Ltd. (Supra), hold that the A.O was not justified in denying the claim of carry forward of loss in question in the A.Ys. under consideration. 9.1 The decision of Delhi Bench of the Tribunal in the case of Steri Moulds Pvt. Ltd. (Supra) relied upon by the Ld. D.R to support his contention that only the loss declared in the return filed u/s. 139(1) can be carried forward, is not helpful to the revenue as facts therein are distinguishable. In that case assessee had filed the original return declaring positive income and no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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