TMI Blog1974 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee on appeal before the Appellate Assistant Commissioner urged this as one of the grounds amongst other grounds and it was contended that the time for filing of the return could have been extended. The Appellate Assistant Commissioner observed that there was no automatic extension of time and it could only be done on the application made by the assessee and, referring to the provision of section 139(3) of the Income-tax Act, 1961, the Appellate Assistant Commissioner held that the benefit of carry forward was available only to an assessee who had furnished the return within the time allowed under section 139(1) and, therefore, he upheld the Income-tax Officer's finding on this aspect of the matter. There were other items in dispute in appeal before the Appellate Assistant Commissioner but the appeal was dismissed. The assessee, thereafter, preferred an appeal to the Tribunal. It was urged before the Tribunal that the return had been signed on the 30th September, 1964, and sent by registered post on the 1st October, 1964, but it was delivered to the Income-tax Officer only on the 3rd October, 1964. In those circumstances, the time should have been extended, it was urged. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions urged before us we will have to refer to some of the relevant provisions of the Indian Income-tax Act, 1922, as well as the corresponding provisions and the relevant provisions of the Income-tax Act, 1961. Section 22 of the Indian Income-tax Act, 1922, which we shall hereinafter refer to as " 1922 Act ", provided for the return of the income. Sub-section (1) of that section provided for issue of a general notice by publication in the prescribed manner requiring every person whose total income during the previous year exceeded the maximum amount which was not chargeable to income-tax to furnish within such period, not being less than sixty days, as might be specified in the notice mentioned in sub-section (1) of section 22, a return in the prescribed form along with such other particulars as may be required by the notice of his total income and total world income during that period. Sub-section (1) of section 22 of the 1922 Act contained a proviso to the following effect : " Provided that the Income-tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or class of persons." Sub-section (2) of section 22 of the 1922 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of a general notice in the press as was contemplated under section 22(1) of the Indian Income-tax Act, 1922. Sub-section (2) of section 139 of the 1961 Act provided for the issue of individual notice which was covered by section 22(2) of the Indian Income-tax Act, 1922. 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. We need not detain ourselves with that alteration for the purpose of this case. Clauses (a) and (b) dealt with two different classes of assessees, namely, those whose income included income from profession or business-- they were dealt with in clause (a) and others were dealt with in clause (b). But it may be necessary to set out the proviso to sub-section (1) of section 139. The proviso to section 139(1) provided as follows : " Provided that, on an application made in the prescribed manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and carried forward. It was held by the Supreme Court that section 24(2) 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 by 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. It could well be said, the Supreme Court further said, that section 22(3) was merely a proviso to section 22(1). Thus, a return submitted at any time before assessment was made was a valid return. In considering whether the return made was within the time, sub-section (1) of section 22 must be read along with sub-section (3) of that section. A return whether it was a return of income, profits or gains or of loss must be considered as having been made within the time prescribed if it was made within the time specified in section 22(3). In other words, if section 22(3) was complied with section 22(1) must be held to have been complied with. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso provides that once a return has been furnished in accordance therewith all the provisions of the Act become applicable as if it were a return under sub-section (1). That would attract section 22(3) and, therefore, a voluntary return can be filed even after the period mentioned in sub-section (2A) has expired so long as the assessment has not taken place. It is pointed out that, supposing a return is filed showing income but the Income-tax Officer in the assessment proceedings holds that there has been a loss and the assessee was mistaken in showing a profit, the assessee in such circumstances can certainly claim the benefit of section 24(2). If that is possible, there is no reason or justification for holding that, although he could claim the benefit of section 24(2) by filing a voluntary return in the given illustration, he would be deprived of that benefit if he filed a return voluntarily showing a loss except in compliance with section 22(2A). On the other hand, the contention on behalf of the revenue is that section 22 before its amendment in the year 1953 did not make any provision for the filing of a loss return voluntarily. Under section 22(1), returns which were invited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time specified in section 22(3). In other words according to the Supreme Court if section 22(3) was complied with, section 22(1) must also be held to be complied with. If compliance had been made with the latter provision, the requirements of section 22(2A) would stand satisfied. The Supreme Court also noted that a voluntary return could not, however, be filed beyond the period specified in section 34(3) of the Act. We have noticed the changes made by the Income-tax Act, 1961. The main significant change seems to be that the discretion that was given to the Income-tax Officer to extend the time for filing the return has been taken away. But the right of the assessee to file the return before the period of assessment and before the period mentioned in sub-section (4) of section 139, if it is made within the period stipulated in sub-section (1) of section 139, 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. If that is the position the return can be filed within the time specified by sub-section (4) of section 139 and once that return is filed within that time, it would be deemed to be in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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