1988 (5) TMI 71

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.... grievance of the revenue emanating from this ground, we bring into focus the entire factual backdrop of the case, which is as under : 3. This is a case of a Trust which has been given the benefits of section 11 in the earlier assessment years. The assessee-trust filed the return for the year under appeal on28th August, 1982declaring a deficit of Rs. 34,167. The Income-tax Officer during the course of assessment proceedings, inter alia, examined the applicability of the provisions of sections 11(2) and 11(3) of the Income-tax Act in relation to the assessment of the assessee. He determined the total income at Rs. 21,43,054. In doing so he included under section 11(3) into the income of the Trust an amount of Rs. 17,26,000. The Income-tax....

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....f the Act. From this background the revenue has projected before us grievance in the solitary ground that we have reproduced supra. 4. We have heard the parties and carefully considered the rival contentions. The order of the Income-tax Officer shows that the assessee had filed its return on28th August, 1882declaring a deficit of Rs. 34,167 and there was Form No. 6 filed by the assessee asking for extension of time beyond the original statutory limitation provided under section 139(1) of the Act. The Income-tax Officer, in his impugned order, records that "the contention of the Trust that it has requested for extension of time by filing Form No. 6 is of no avail since it has not been able to produce any evidence to prove that the extensi....

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....n upon the assessee of not showing that time was allowed. This is against the settled position of law. The Hon'ble Supreme Court in the case of CIT v. Behari Lal Ram Charan Ltd. has held that an officer cannot take advantage of his own failure. This observation of theHon'ble Courtwas in the context of determination of carry forward of loss. However, in our considered opinion it applies with equal force to a position where the assessee has complied with the provisions of law and an order is required to be passed by the Income-tax Officer to give the necessary benefit of a provision. In this case before, us the assessee had applied in Form No. 6 for extension of time. There is no dispute that the return was filed within the period for which t....

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....ntly essential and imperative that the Department should intimate to the assessee its refusal to extend time without expecting the assessee to dance attendance on the Department by making enquiries whether the department proposes to grant the assessee's application or not. If the Department does not desire to grant the assessee's application for extension of time, it is the duty of the Department to inform the assessee, accordingly, well in advance so that the assessee is put on his guard that unless he files his return within the prescribed period, penal consequences are likely to follow. If the Department chooses not to reply to the assessee's application within the time applied for by the assessee, time is deemed to be extended as prayed....