TMI Blog1990 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... not furnished in terms of section 139 although they were furnished in terms of notice under section 148 ?" The facts of the case, as stated by the Tribunal, are as follows : "For the assessment years 1970-71, 1971-72 and 1972-73, incometax assessments were completed under section 143(3) determining losses as stated below: Assessment year Loss Rs. 1970-71 29,656 1971-72 14,072 1972-73 41,819 There was no assessment for the assessment year 1974-75. For the assessment year 1975-76, the Income-tax Officer, A-Ward, Burdwan, made an assessment determining an income of Rs. 74,828. On a prayer of the assessee, the said officer declined to set off the losses for the years mentioned above against the above income for this year o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, there were two miscellaneous applications filed by both the assessee and the Revenue in which the Tribunal had passed the following order: "We have considered the submission made by both the sides and it is seen that the Appellate Tribunal referred to the statement of the Incometax Officer that, for the assessment years 1973-74 and 1974-75, the assessee filed a return under section 139 but not within the time prescribed under section 139(1). But, as indicated earlier, the reference application related to the assessment years 1975-76 and 1976-77. After taking into account the findings of the Appellate Tribunal and its directions and after considering the submissions made by both the sides before us, we are of the opinion that the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act. In both the cases, the assessee can claim carry forward or set off of losses incurred by the assessee which has been computed on the basis of the return filed. In the instant case, the assessee was served with a notice under section 148 of the Income-tax Act, which is as under : "148. Issue of notice where income has escaped assessment.(1) Before making the assessment, reassessment or recomputation under section 147, the Income-tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in notice under sub-section (2) of section 139 ; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w assessment has to be made in accordance with the provisions of the Income-tax Act. All the provisions, including the provisions of sections 70, 71, 72, 73 and 74 of the Income-tax Act will apply. If pursuant to the filing of a return under section 139 (2), the assessee was entitled to claim carry forward and set off of losses, then there is no reason why after the filing of return in pursuance of a notice under section 148 of the Act, the assessee cannot claim similar relief. The notice under section 148 gave him an opportunity to do so. The notices under section 148 were issued at a point of time when it was still open to the assessee to file returns of income for the purpose of claiming loss. After the notices under section 148 were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed returns declaring losses in response to notices issued by the Income-tax Officer under section 148 of the Income-tax Act, 1961. The assessee had not previously filed any returns nor was it assessed before the notices under section 148 were received. The question was whether the assessee could claim the benefit to carry forward and set off of the losses. But there was no dispute that the assessee had filed its returns within the time allowed by the provisions of sub-section (4) of section 139 of the Income-tax Act. It was held by a Division Bench of the Madhya Pradesh High Court that the provisions of section 80 of the Income-tax Act, 1961, made it clear that in order that loss could be carried forward and set off under section 72( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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