TaxTMI 
TaxTMI 
2011 (7) TMI 399
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....iming long-term capital loss at Rs. 1,82,27,039 and the said loss was claimed to be carried forward under section 74 of the I.T. Act. 3. The Assessing Officer has reservation in allowing the claim of the assessee to carry forward the long-term capital loss, as in his opinion, as per provisions of section 139(1), 139(3) and section 80 of the Act, the same is not permissible as the revised return of income was filed on 28-3-2006. The Assessing Officer also referred to section 80 of the Act and observed that no loss which has not been determined in pursuance of return filed in accordance with the provisions of sub-section (3) of section 139 of the Act shall be allowed to be carried forward and set off under section 74 of the Act. He was of the further opinion that revised return of loss should have been filed under section 139(1) of the Act. In the revised return, the assessee claimed the loss from the sale of shares of Phiolx Pharma Ltd. which was never claimed in the original return filed under section 139(1) of the Act and in the revised return, the assessee claimed the loss for the first time, which was filed on 28-3-2006. The Assessing Officer referred to the decision in the cas....
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....the shares of Philox Pharma Ltd. remained to be claimed in its original return. He further submits that original return filed by the assessee is return of the positive income and even the revised return filed by the assessee is also declaring the positive income. As the assessee cannot be set off the long-term capital loss on the sale of shares in the assessment year 2005-06 and hence, the same is claimed to be carry forward to the subsequent assessment year. He further submits that the decision relied on by the Assessing Officer as well as the Ld. CIT(A) in the case of M. Narendranath (Indl.) (supra) is not correct. He, further pleaded for allowing the claim of carry forward of loss long-term capital loss. Per contra, the Ld. D.R. supported the orders of the authorities below. 7. We find that the original return of income is filed by the assessee declaring the positive income well within the time limit prescribed under section 139(1) of the Act. For the sake convenience we reproduce relevant provisions of section 139 of the Act, which read as under:- "(1) Every person,- (a) being a company or a firm; or (b) being a person other than a company or a firm,....
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....individuals, whether incorporated or not, or an artificial juridical person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year, without giving effect to the provisions of section 10A or section 10B or section 10BA or Chapter VI-A exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. Explanation 1.-For the purposes of this sub-section, the expression "motor vehicle" shall have the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988). Explanation 2.-In this sub-section, "due date" means,- (a) where the assessee is- (i) a company; or (ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or (iii) a working partner of a firm whose accounts are required to be audi....
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....the end of the relevant assessment year or before the completion of the assessment, whichever is earlier : Provided that where the return relates to the previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year. ** ** ** Explanation 1.-For the purposes of this sub-section, "specified date", in relation to a return for an assessment year, means,- (a) in the case of every assessee whose total income, or the total income of any person in respect of which he is assessable under this Act, includes any income from business or profession, the date of the expiry of four months from the end of the previous year or where there is more than one previous year, from the end of the previous year which expired last before the commencement of the assessment year or the 30th day of June of the assessment year, whichever is later; (b) in the case of every other assessee, the 30th day of June of the assessment year. Explanation 2.-Where, in....
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....tal loss as per the revised return filed on 28-3-2006. We have already stated that the original return was filed by the assessee is well within the time and there is no controversy on this aspect. Subsequently, the assessee filed the revised return and claimed that same is filed under sub-section (5) to section 139. As per the provisions of section 139(5) if the assessee has furnished the return under section 139(1) and subsequently discloses any wrong statement therein or which in his opinion is wrong then he can revise the return at any time before the expiry of the one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. So far as the time limit prescribed under sub-section (5) to section 139 is concerned, the Assessing Officer is not disputing the same. Only issue is in respect of interpretation of sub-section (3) of section 80. As per provisions of sub-section (3) of section 139, if the assessee incurred loss in any previous year under the head 'Profit and gains of business or profession' or 'Capital gain' and claims that the said loss or part thereof should be carried forward under section 72, 73 or 74 etc. then h....