TMI Blog1991 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ound facts are that M/s Orissa Metal Industries (P) Ltd., a private limited company (hereinafter referred to as " the assessee filed its return for the assessment year 1980-81 on August 30, 1980, indicating a total loss of Rs. 3,87,500. After assessment by the Incometax Officer, Ward-A, Bhubaneswar, the net loss arrived at was Rs. 96,585. The Assessing Officer was of the view that the assessee was not entitled to carry forward the loss as the return was not filed within the time prescribed in section 139(1) read with section 139(3) of the Act. In appeal, the Commissioner of Income-tax (Appeals), Orissa, relying on a decision of the Madhya Pradesh High Court in Co-operative Marketing Society Ltd. v. CIT [1983] 143 ITR 99, held that even wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refusing the reference and the Commissioner of Income-tax (Appeals) and the Tribunal were not justified in their conclusion that filing of return under section 139(4) of the Act enables an assessee to get the benefit of carry forward loss. At this juncture, it is relevant to refer to section 139(3) which deals with carry forward of losses. It enables an assessee, even where he has not been served with a notice under section 139(2) to furnish within the time allowed under section 139(1) or the extended time, if any, a return of his loss. If such a return is filed, sub-section (3) provides that it shall be accepted as a return filed under section 139(1) and all the provisions of the Act shall apply to such a return. The assessee may file a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at was loosely described as individual notice which provided that, in the case of any person whose total income was, in the opinion of the Income-tax Officer, of such an amount as to render that person liable to income-tax, the Income-tax Officer might serve a notice upon him requiring him to furnish within such period, not being less than thirty days, as may be specified in the notice, a return in the prescribed form of his total income during the previous year. In this sub-section, there is also a similar proviso giving discretion to the Income-tax Officer to extend the date for the delivery of the return. By section 14 of the Income-tax (Amendment) Act, 1953, sub-section (2A) was introduced with effect from April 1, 1952. The same read a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice in the press as was contemplated under sub-section (1) of section 22 of the 1922 Act. Sub-section (2) of section 139 provided for the issue of individual notice which was covered by section 22(2) of the 1922 Act. Section 139(1) provided that every person, if his total income in respect of which he was assessable under the Act during the previous year exceeded the maximum amount which was not chargeable to income-tax, should furnish a return of his income or the income of such other person during the previous year, in the prescribed form setting out the particulars as might be prescribed. The time for filing of the return was altered. The proviso to section 139(1) provided as follows : " Provided that, on an application made in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at source, as the case may be. " The Supreme Court by a majority judgment in Kulu Valley Transport's case [1970] 77 ITR 518, held that section 24(2) of the 1922 Act conferred the benefit of losses being set off and carried forward and there was no provision in section 22 under which losses had to be determined for the purpose of section 24(2). Section 22(2A) simply stated that, in order to get the benefit of section 24(2), the assessee should submit his loss return within the time specified in section 22(1). The provision had to be read with section 22(3) for the purpose of determining the time within which a return had to be submitted. The Supreme Court observed that section 22(3) was merely a proviso to section 22(1), and a return submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof, which is similar to the time mentioned in sub-sections (1) and, (2) of section 22 of the 1922 Act, is not in any way affected. That being the position, the return can be filed within the time specified in subsection (4) of section 139 and once that return is filed, it would be deemed to be in accordance with law and the loss had to be determined under the relevant provisions of the Act which embodies principles similar to section 24(2) of the 1922 Act. The alteration in the Act by which there has been curtailment of the right of the Income-tax Officer to extend the time, does not materially affect the situation so far as the carry forward of loss is concerned. It may be indicated here that section 139(3) has undergone several cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
