1984 (7) TMI 143

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....d the assessment computing the loss at Rs. 1.80 lakhs. 3 to 12. [These paras are not reproduced here as they involve minor issues.] 13. The last ground in the revenue's appeal is against the Commissioner (Appeals)'s direction to carry forward assessed loss. The ITO had laconically stated at page 24 of the assessment order that 'loss not to be carried forward as the return filed late'. In para 2 of the assessment order, date of filing of loss return of Rs. 5.58 lakhs is not given though it is mentioned that revised return was filed on28-3-1980showing loss of Rs. 5.57 lakhs. 14. The Commissioner (Appeals) directed the ITO to carry forward the loss relying on CIT v. Kulu Valley Transport Co. (P.) Ltd. [1970] 77 ITR 518 (SC), Presidenc....

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....ed during the extended period is not regarded by the statute as filed within the time originally prescribed. The learned departmental representative urged that if a return filed within the extended time is not treated as a return filed within the time originally prescribed, then a return not filed within the time prescribed under section 139(3) but filed beyond that time, namely, within a two-year period prescribed under section 139(4), cannot be treated to be a return under section 139(3). He further urged relying on CIT v. Manmohan Das [1966] 59 ITR 699 (SC) that whether the loss in any year may be carried forward to the following year and set off against the profits and gains of the subsequent year under section 24(2) of the 1922 Act has....

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....ayHigh Court in Telstar Advertising (P.) Ltd.'s case followed the Calcutta High Court and held that the ITO was not justified in refusing to carry forward the loss on the ground that the loss return had not been filed within the time prescribed under section 139(3). The Bombay High Court did not follow the view taken by the Mysore High Court in B.B. Danganavar's case. Similar view was taken by the Delhi High Court in CIT v. Bankipur Iron Works Ltd. [1980] 3 Taxman 484. The assessment year before the Delhi High Court was, however, the assessment year 1961-62, in which year the 1922 Act applied. 18. The Allahabad High Court in CIT v. Pratapgarh Cold Storage & Ice Factory [1980] 3 Taxman 61, while dealing with the assessment year 1971-72, f....

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....gh Court followed Kulu Valley Transport's case. 21. The Tribunal, Special Bench, Jaipur, in ITO v. Bohra Film Finance [1983] 4 ITD 247, while holding that return filed under section 139(4) could not be treated as filed under section 139(1) or 139(2), did observe at page 257 that the scheme of the 1922 Act in regard to filing of the return was somewhat different from the scheme of the 1961 Act. However, the Special Bench was not concerned with the problem before us. We also note that Kanga & Palkhivala in foot-note 12 at page 825 of Law and Practice of Income-tax, Vol. 1, 7th edition, has observed that dissenting judgment of Shah J. in Kulu Valley Transport Co. (P.) Ltd.'s case was the correct view that the assessee, not filing the loss r....