TaxTMI 
TaxTMI 
1997 (3) TMI 160
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....n filed late, the loss claimed (on account of depreciation claimed) was not considered by the Assessing Officer. On appeal, the CIT(Appeals) held that the assessee's belated submission of return for earlier year would not in any way affect the carry forward of unabsorbed depreciation and investment allowance. According to the CIT (Appeals), it may affect the carry forward of business losses in view of section 80 as amended w.e.f. 1-4-1985 and section 139(10) inducted w.e.f. 1-4-1986. The CIT(Appeals), therefore, directed the Assessing Officer to allow the assessee set off of unabsorbed depreciation and investment allowance of the assessment year 1986-87. The revenue felt aggrieved and preferred the present appeal before the Tribunal. 4. It is argued by the ld. Departmental Representative that under section 139(10) if the return is declared non est then the provisions of the Act will not apply. It is stated that the assessee filed the return of loss in December 1986 for the assessment year 1986-87. The Assessing Officer has intimated the assessee that the loss return filed on 26-12-1986 for the assessment year 1986-87 is lodged under section 139(10). The Departmental Representative....
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....sidered the rival submissions, facts of the case and the material on record including the paper book filed by the assessee's counsel. The assessee filed the return for the assessment year 1986-87 on 26-12-1986. The Assessing Officer sent communication dated 21-9-1987 intimating the assessee as under : " The loss return filed on 26-12-1986 for the assessment year 1986-87 is lodged under section 139(10) of the Income-tax Act. " Section 139(10) provide that: Notwithstanding anything contained in any other provision of the Income-tax Act, 1961, a return of income which shows the total income below the maximum amount which is not chargeable to tax shall be deemed never to have been furnished. Proviso to section 139(10) also mentions exceptions in the case of return of income to which provisions of section 139(10) will not apply. The assessee's case is not covered by the said proviso because the return was filed on 26-12-1986. Therefore, Assessing Officer came to conclusion that for all practical purposes under section 139(10), the return of income filed by the assessee for the assessment year 1986-87 shall be deemed never to have been furnished. 7. In the case of CIT v. Dalmia Cement....
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....wants his loss to be carried forward, then he may take recourse to section 139(3) as it is completely independent of the provisions of section 139(10). This position of law would be very clear from proviso (d) to section 139(10), which speaks that provisions of sub-section (10) shall not apply to a return of loss which has been furnished before 31st day of July of the assessment year relevant to the previous year during which the loss sustained. If the income is below the maximum limit of chargeable income, whether there is loss or not, it will come within the ambit of section 139(10). If this is so, the return showing the loss being filed in the instant case after 31st day of July of the assessment year, could not be deemed to be a return filed by the assessee and on that basis no assessment proceeding would proceed. Therefore, the Tribunal was not justified in holding that the Assessing Officer was justified in initiating the assessment proceedings on the basis of the loss return filed on 10-1-1989 without any claim for carry forward of loss. " Therefore, in view of the aforesaid decision of the Gauhati High Court, it is clear that since the return of income has been lodged unde....
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....e assessment year 1986-87 because, the appeal for assessment year 1986-87 was not pending before him and there was no order of assessment for that assessment year, against which appeal could have been filed before the CIT(Appeals). Therefore, in directing the Assessing Officer to set off unabsorbed depreciation and investment allowance for the assessment year 1986-87, the CIT(Appeals) totally went beyond his jurisdiction to decide the issue relating to the assessment year 1986-87, because the appeal for that year was not pending. Since the appeal for the assessment year 1987-88 is pending before the Tribunal we could only decide the issue relating to this particular assessment year 1987-88 and the issue relating to the assessment year 1986-87 cannot be decided because there is no appeal before us relating to that year against any assessment for the assessment year 1986-87. We, therefore, reverse the order of the CIT(Appeals) on this issue and restore the order of the Assessing Officer. 10. Since the appeal for the assessment year 1986-87 is not before us, the Board Circular No. 469 of 23-9-1996 relied on by the assessee's counsel as also other reported cases, cannot be considered ....