TMI Blog2021 (10) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... nation to thereto, due date means, 31st day of October of the assessment year. As aforesaid, 139(3) makes it clear that the return has to be filed as per sub- Section (1) of Section 139 for carrying forward and setoff of losses. If any order was passed inadvertently u/s 143 sans considering the date of filing of the return for losses, the same certainly is an error apparent on the record, which do not require any further adjudication. Hence, the finding of the authorities on this issue cannot be faulted with. Accordingly, the questions of law raised are answered in favour of the assessee and against the revenue. We reserve liberty to the assessee to file an application under Section 119(2)(b) of the Act before the competent authority s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute was in time? (iii) When the loss of immediately preceding year was undisturbed, whether the authorities were justified in disturbing the same, for the year under challenge? (iv) Whether in law, the authorities below were justified in denying the set-off of loss for the year under challenge on the ground that there was a delay in filing the return for the assessment year 2004- 05? (v) Without prejudice to the above, when a delay of one day in filing the return of income for the assessment year 2004-05 having been explained and the same having not been denied or negative by the revenue, whether in law the loss for that year be said to have been determined for the purpose of carry forward? 3. The appellant/assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer. Further, the CIT (Appeals) observed that it was CBDT which has powers under Section 119(2)(b) of the Act to authorize any income tax authority to admit an application or claim of any exemption, deduction, after the expiry of the period prescribed by or under the Act, in any case or class of cases. Accordingly, the CIT (Appeals) rejected the claim of carry forward of the loss, further observing that the assessee had not moved any application to CBDT for condonation of delay in filing the loss return. 4. Being aggrieved by the said order, an appeal was filed by the assessee before the Tribunal which came to be dismissed. Hence, the assessee has preferred this appeal. 5. Learned counsel appearing for the appellant/assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Section, it is mandatory that the return for losses has to be filed in accordance with provision of sub-section (3) of section 139. Sub-section (3) of Section 139 of the Act contemplates that loss of return has to be filed within the time allowed under sub-Section (1), accordingly the said return ought to have been filed on or before 31st day of October, 2004, but admittedly the return was filed belatedly on 02.11.2004, the same being not a debatable issue and an error apparent on the face of the record, the Assessing Officer was justified in passing the order under Section 154 and the same has been rightly confirmed by the First Appellate Court as well as the Tribunal. 7. Heard the learned counsel appearing for the parties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m], if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed78 form and verified in the prescribed manner and setting forth such other particulars as may be prescribed: Explanation 2.- In this sub-section, due date means,- (a) where the assessee other than an assessee referred to in clause (aa) is- (i) a company; or (ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged mistakes require investigation into facts or determination of law or two opinions are possible on the issue, then it could not be construed as the mistake apparent on record which could be rectified under Section 154. 13. Admittedly, the return for the relevant assessment year herein was filed on 02.11.2004 instead of 31.10.2004. As per Section 139(1) and the explanation to thereto, due date means, 31st day of October of the assessment year. As aforesaid, 139(3) makes it clear that the return has to be filed as per sub- Section (1) of Section 139 for carrying forward and setoff of losses. If any order was passed inadvertently under Section 143 sans considering the date of filing of the return for losses, the same certainly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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