TaxTMI 
TaxTMI 
1993 (8) TMI 120
X X X X Extracts X X X X
X X X X Extracts X X X X
....n applications from time to time seeking extension up to30-6-1986 and since, the return had been filed before the expiry of30-6-1986, the loss may be allowed to be carried forward. The CIT (Appeals) by the impugned order did not accept the claim of the assessee on the ground that the three of the 4 applications filed in Form No. 6 had not been filed after the expiry of the time, whether allowed originally or on extension and, therefore, the assessee was not entitled to the benefit of decision of the Patna High Court in the case of CIT v. S.P. Vij Construction Co. [1987] 165 ITR 732, where their Lordships have held that the filing of extension application, if not rejected, amounts to granting of extension. It may be pertinent to mention that for assessment year 1986-87 also assessee had filed the return after the expiry of the time allowed originally under section 139(1) and the Assessing Officer had declined to allow carry forward of loss. The CIT (Appeals) having found the applications in Form No. 6 filed before the expiry of the time, held that assessee was entitled to presumption of extension and, therefore, was entitled to the carry forward of loss - time having been deemed to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Form No. 6 vide receipt No. 743983 seeking extension of time up to30-9-1985. Since, this application has been filed well before the time allowed under section 139(1) assessee was entitled to presume extension up to30-9-1985. This is as per the view expressed by the CIT (Appeals) himself in the impugned order on the basis of the decision of the Patna High Court in the case of S.P. Vij Construction Co. Assessee has filed further applications in Form No. 6 as under:--- Date of filing Receipt No. Extension sought &nb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owever, difficulty arises in a case where applications have been filed after the expiry of the time allowed under section 139(1) either originally or on extension. Some of the High Courts have taken the view that where the application is belated, assessee cannot presume extension. There, in our view, can be no dispute about this proposition of law. However, in this case, the issue before us is not as to whether the assessee was entitled to presume grant of extension on account of filing the belated applications in Form No. 6. The issue that arises, in this case, is as to whether the Assessing Officer can ignore the belated applications in Form No. 6 and is he duty bound to dispose of the same, before deciding the issue relating to allowance of carry forward of loss under section 72 of the Act. In a case where the assessee has promptly filed the applications in Form No. 6 within the time allowed under section 139(1) and the Assessing Officer has not rejected such applications by virtue of the decisions of the various High Courts referred to above, the assessee gets extension not necessarily on merits but by default of the Assessing Officer. However, in a case where applications are ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sp; "FORM NO. 6 Application for extension of the date for furnishing a return of income under section 139 of the Income-tax Act, 1961 TO The (Assessing) Officer, .................................... Under section 139(1)/(2)/(3) of the Income-tax Act, 1961, I/we have to file the return of my/our income .................. the income of ............................................................. in respect of which I/we am/are assessable for the assessment year commencing on the 1st April, 19.... before......... 19.... for the reasons given below, if is not possible/has not been possible for me/us to file the return before th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nbsp; ................................ Address Notes: 1. Delete the inappropriate words. 2. The application should be signed by a person who is entitled to sign a return of income as provided in section 140 of the Income-tax Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d for asking for extension of time for filing of the return of income, it is clear that the application can be made even after the expiry of the prescribed date. Moreover, the proviso to section 139(2) of the Income-tax Act, 1961 does not contain any limitation to the effect that such an application must be made before the due date." 10. Considering the proviso to section 139(1), rule 13 of the Income-tax Rules and Form No. 6 and the aforementioned decisions, we are of the considered view that the assessee being entitled to file an application even after the expiry of the time allowed for furnishing of the return under section 139(1), the Assessing Officer is duty bound to dispose of the same before deciding the issue relating to carry forward of loss, which is at the stage of assessment. When an application filed by the assessee in accordance with law has not been disposed of by the Assessing Officer, one cannot ascertain as to whether the return of income filed by the assessee is within the further time allowed by the Assessing Officer under proviso to section 139(1). The Assessing Officer has decided the claim of the assessee without looking at the applications for extension ....