TMI Blog2019 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... e would enable such claim of carry forward. A loss return can definitely be filed under Section 139(1). But the same would be restricted to the set off being claimed in that relevant previous year without any claim for a carry forward of loss which remains after set off. True Section 139(3) makes applicable the provisions of the Act as if it were a return under Section 139(1). Hence, if a return is filed under Section 139(3), necessarily, the assessee could avail of the benefit under Section 139(5) for filing a revised return which would be treated as the original return filed under Section 139(3). When a return is originally filed under Section 139(1), the enabling provision under Section 139(5) to file a revised return only enables the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the business loss carried forward. However in appeal, the assessee took a contention that they are entitled to carry forward of business loss for the years 2001-02 to 2005-06. The first appellate authority allowed the claim, except that of AY 2002-03. The Income Tax Appellate Tribunal interfered with that order to find the loss of AY 2002-03 also eligible for carry forward. The Revenue is in appeal from the said order of the Tribunal. 2. On facts, it is to be noticed that the assessee in the AY 2002-03, originally made a return under Section 139(1) of the Income Tax Act, 1961 ( Act for short) showing a positive income of ₹ 7,79,502/-. This was filed within the time provided under Section 139(1). Later, within the time pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with loss under two heads; (i) in respect of profits and gains of business or profession and (ii) capital gains, whereas Section 139(1) speaks of a return by every person having a total income exceeding the maximum amount which is not chargeable to income tax. Hence, when a return is filed under sub- Section (1), the assessee admits to have an income exceeding the maximum which is not chargeable to income tax and the same cannot be revised to claim a loss which has to be specifically claimed in a return filed under Section 139(3). The provisions applicable to a return filed under Section 139(1), though equally applicable to the return filed under Section 139(3), when a return is originally filed under Section 139(1), merely by way of a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III and Others], (2010) 322 ITR 233 (Delhi) [Commissioner of Income Tax v. Nalwa Investment Ltd.] and (2004) 88 ITD 317 (Mad) [Sujani Textiles (P) Ltd. v. Assistant Commissioner of Income Tax]. 7. Before we look at the specific interpretation of the Section, we would look at the various decisions placed before us. 8. Shri Vallabh Glass Works Ltd. , a decision of the Gujarat High Court, relied on by the learned Senior Counsel is an authority for the proposition that when the statute permits filing of a revised return, the same has to be considered by the assessing authority as one filed within the period originally prescribed, especially when the final assessment is not over and the limitation prescribed for the revision has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. What distinguishes this decision from the above case is insofar as the original return being one filed under Section 139(3). 10. Going by the peculiar facts available herein, we have also looked into the decision of an Income Tax Appellate Tribunal, Madras in Sujani Textiles (P) Ltd. Therein, the assessee had filed return of loss under Section 139(3) and then filed a revised return returning enhanced loss from that originally returned. The AO, however, completed the assessment on the basis of the original return without taking cognizance of the higher amount of loss reflected in the revised loss return. The Tribunal found that when originally a return was filed under Section 139(3), the same has to be deemed to be a return f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious year without any claim for a carry forward of loss which remains after set off. 12. True Section 139(3) makes applicable the provisions of the Act as if it were a return under Section 139(1). Hence, if a return is filed under Section 139(3), necessarily, the assessee could avail of the benefit under Section 139(5) for filing a revised return which would be treated as the original return filed under Section 139(3). However, when a return is originally filed under Section 139(1), the enabling provision under Section 139(5) to file a revised return only enables the substitution or revision of the original return filed. On a revised return filed, it can only be a return under Section 139(1) and not one under Section 139(3). This compell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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