TMI Blog2019 (11) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer as defective (if all entries are not filled) or raise a demand for tax on the basis of the declared income under Section 143(1) of the Act or if the assessment is taken to scrutiny under Section 143(3) of the Act, then the petitioner will not be entitled to raise a claim of set off under Section 72 of the Act during the assessment proceedings. The purpose and object of e-filing of return to have simplicity and uniformity in procedure. However, the above object cannot in its implementation result in an assessee not being entitled to make a claim of set off which he feels he is entitled to in accordance with the provisions of the Act. The allowability or dis-allowability of the claim is a subject matter to be considered by the Assessing Officer. However, the procedure of filing the return of income cannot bar an assessee from making a claim under the Act which he feels he is entitled to. In the absence of the petitioner filing its return of income on or before 31st October, 2019, the petitioner is likely to face penal consequences. We also in the present facts are of the view that awaiting the order of the Assessing Officer under Section 139(9) of the Act, dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition be disposed at the stage of admission. Therefore, we have taken up the petition for final disposal at the stage of admission. 2. This petition under Article 226 of the Constitution of India seeks a direction to the respondent no.1 Assessing Officer and respondent no.2 the Central Board of Direct Taxes to accept the petitioner s return of income for Assessment Year 2019-20 in paper form under Section 139(1) of the Income Tax Act, 1961 (the Act). 3. The petitioner has been compelled to move this Court on urgent basis as the petitioner is obliged under Section 139D of the Act read with Rule 12 of the Income Tax Rules, 1961 (Rules) to file its return of income electronically with his digital signature. This prescribed return of income which has to be filed electronically does not permit the petitioner to make his claim to set off of his profits of this year from the carried forward losses of the previous year in terms of Section 72 of the Act. This for the reason the prescribed electronic returns do not enable making the above claim as it is largely self populated. Resulting in excess income being declared, which would require more amount being required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of Section 71 of the Act i.e. setting of the losses against gains of the subject assessment year. However, the petitioner was not able to reflect in the prescribed return of income in electronic form, the set off available in terms of Section 72 of the Act i.e. setting off of current years business loss against the carry forward loss from the earlier years. This for the reason that the return which is filed electronically requires certain columns to be filled in by the petitioner and the other columns are self populated. The petitioner is unable to change the figures and make a claim for set off under Section 72 of the Act in the present facts. This results in excess income being declared, resulting in an obligation to pay more tax on income which in term of section 72 of the Act is allowed to be set off against carried forward losses of earlier years. It is in these circumstances, the petitioner has prayed that he be allowed to file his return of income in appropriate form for the subject assessment year in paper form and the same be taken up for assessment in accordance with the Act. 5. Mr. Mistri, learned Senior Counsel in support of the petition submits as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unable to make a claim which according to him, he is entitled to in law. In case, the petitioner is compelled to file in the prescribed electronic form, it could be declared by the Assessing Officer as defective (if all entries are not filled) or raise a demand for tax on the basis of the declared income under Section 143(1) of the Act or if the assessment is taken to scrutiny under Section 143(3) of the Act, then the petitioner will not be entitled to raise a claim of set off under Section 72 of the Act during the assessment proceedings. This in view of the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. Vs. Commissioner of Income Tax, 284 ITR 323 wherein it has been held that if a claim is not made by the assessee in its return of income, then, the Assessing Officer would have no power to entertain a claim otherwise then by way of revised return of income. The revised return of income if the petitioner attempts to file, would result in the petitioner not being able to make the claim, for which the revised return is filed as the revised return of income would also have to be filed in the prescribed electronic form which does not provide for such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income on or before 31st October, 2019, the petitioner is likely to face penal consequences. We also in the present facts are of the view that awaiting the order of the Assessing Officer under Section 139(9) of the Act, declaring the return as defective, will not help as the issue would continue to remain even if a fresh return is filed. The issue raised is a fundamental issue, which needs to be addressed by the CBDT. 10. It is in these aforesaid unusual circumstances, that we have not adopted the course of directing the petitioner to first demand justice from the Authority concerned before moving this Court in its writ jurisdiction. This view of ours is also supported by the fact that Mr. Walve, learned Counsel appearing for the Revenue on instructions states that the Assessing Officer who is present in Court states that in his experience he has not come across a case like this where the return which are prescribed under Section 139D of the Act r/w Rule 12 of the Rules do not take into account the situation where the assessee s claim cannot be considered. Moreover, from the facts as noted above, this situation (like the present) may not be restricted only to this petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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