TMI Blog1999 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... carry forward of loss. The CIT(A) in the impugned order held that even though the assessee had applied for extension of time in Form No. 6 for filing of return of income, the Assessing Officer did not issue any reply to the assessee's request and, therefore, it is presumed that time was granted as requested for. He has placed reliance on the decision of the Gujarat High Court in CIT v. Janata Film Exchange (P.) Ltd. [1993] 202 ITR 532 in this connection. Since the assessee applied for extension of time till 31-8-1988 and the return of loss was filed on 29-8-1988, the assessee was entitled to the benefit of carry forward of loss. In this view of the matter, the CIT(A) allowed the assessee's appeal. The department is aggrieved by this order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1988-89 the clause enabling the Assessing Officer to allow extension of time for filing loss returns was deleted from section 139(3)." In the circumstances the ld. D.R. argued that the CIT(A) is not justified in allowing the claim of loss to be carried forward. 4. The ld. counsel for the assessee, Shri M.J. Shah drew our attention to the relevant legal provisions and also relied upon the decision of the Tribunal, Gauhati Bench in the case of Eastern Tea Estate (P.) Ltd. v. Dy. CIT in IT Appeal Nos. 327 and 328 (Gauhati) of 1992 Taxman's case Digest/ITAT Vol. 97 pp. 239 to 240). He also referred to the decision of the Supreme Court in the case of CIT v. Ajanta Electricals [1995] 81 Taxman 166/215 ITR 114. 5. We have considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the provisions of sub-section (3) of section 139" by the Direct Tax Laws (Amendment) Act, 1987 w.e.f. 1-4-1989: "Section 139(3) : If any person who has not been served with a notice under sub-section (2) has sustained a loss in any previous year under the head 'Profits and gains of business or profession' or under the head 'Capital gains' and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72, or sub-section (2) of section 73, or sub-section (1) or sub-section (3) of section 74 or sub section (3) of section 74A, he may furnish, within the time allowed under sub-section (1) or by the thirty-first day of the assessment year relevant to the previous year during which the loss was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, these provisions have to be read together in order to apply a liberal construction in favour of the assessee as laid down by the Hon'ble Supreme Court in the cases of CIT v. Shahzada Nand Sons [1966] 60 ITR 392/77 ITR 817 (sic) CIT v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC). As mentioned earlier the assessee claims to have filed Form No. 6 requesting for extension of time to file the return. However, the Assessing Officer did not reply to the assessee's request. The CIT(A) by applying the decision of the Gujarat High Court in CIT v. Gordhanbhai Jethabhai [1983] 142 ITR 84/12 Taxman 54 and that of the Calcutta High Court in Janata Film Exchange (P.) Ltd. 's case treated the return filed on 29-8-1989 as a valid return as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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