TaxTMI 
TaxTMI 
2015 (8) TMI 128
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....e for assessment year 2008-09 was filed by the assessee after expiry of due date for filing of return of income. He submitted that admittedly, the return of income for assessment year 2008- 09 was filed beyond due date and therefore, loss of the assessee in that year of Rs. 4,96,203/- cannot be carried forward and ser off in the present year but apart from that, the assessee has incurred loss in all earlier years i.e. assessment year 2004-05 to 2007-08 and in all those years, the return of income were filed before due date i.e. on or before 31st October of the respective assessment year. He submitted that the loss of those years should be allowed to be set off in the present year. He also submitted that the relevant assessment order for assessment year 2004-05 is available on pages 90 to 94 of the paper book and copy of acknowledgement for assessment year 2005-06 is available on page 95 of the paper book and for this year, there was no intimation received and no assessment framed u/s 143(3) of the Act. Similarly, the copy of assessment order for assessment year 2006-07 is available on pages 96 to 99 of the paper book and the assessment order for assessment year 2007-08 is available....
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....set off under sub-section(1) of section 72 or sub-section(2) of section 73 or sub-section(1) or sub-section(3) of section 74 or sub-section (3) of section 74A." Section 139(3) "If any person who has sustained a loss in any previous year under the head "Profits and gains of business or profession" or under the head "Capital gains" and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) or sub-section (3) of section 74 or sub-section (3) of section 74A, he may furnish, within the time allowed under sub-section (1) a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1)." 5.2 From the provisions of sub section (3) of section 139, it is seen that assessee's obligation is confined to the extent that in the year of incurring loss, the assessee should file the return of income within the time allowed u/s 139(1) of the Act. In the present case, we find that as per the assessment order for the assessment year ....
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....ent year 2005-06 is not available and therefore, this is necessary to find out as to what was the assessed income in that year although the return of income was filed within the due date for this year also and if it is foun that there was any loss assessed in that year, such loss should also be eligible for set off in the present year. 7. We have also come across a judgment of Hon'ble Apex Court rendered in the case of CIT vs. Manmohan Das (Deceased) [1966] 59 ITR 699 (SC) wherein it was held, although in the context of 1922 Act, 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, has to be determined by the Income-tax Officer who deals with the assessment of the subsequent year and a decision by the Income-tax Officer who computes the loss in the previous year that the loss cannot be set off against the income of the subsequent year is not binding. Hence, we find that as per this judgment and also as per provision of section 139(3), the assessee is required to file the return of loss in the respective year within the time prescribed u/s 139 (1) and if the loss is accepted in the rel....
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....at TDS of Rs. 336/- has been deducted on payments of Rs. 1,85,519/- to Shri R.P. Vishwakarma and has been deducted on payment of Rs. 2,09,797/- to Shri indrajeet Singh. The disallowance of Rs. 3,95,316/- out of Rs. 8,11,453/- is not justified as the payment has been made after deduction of TDS. As regards the claim of the appellant that the concerned employees would have given details of investment under section 80C of the Act and therefore the TDS was not deducted. I find that the contentions lacks the evidentiary value in absence of documents in support. I also find that payments of salary by transfer to UP Cooperative Union of Rs. 1,75,000/- each in the case of 3 supervisors is without deduction of TDS and so is the case with other supervisors to whom part of the salary is disbursed by the appellant and part is transferred to UP Cooperative Union for statutory dues. Such payments of Rs. 4,16,137/- are without deduction of TDS and there is no evidence of any claim of deduction under section 80C of the Act which could have reduced the income to below taxable limit. In view thereof the disallowance of Rs. 4,16,137/- under section 40(a)(ia) of the Act is confirmed." 14.1 From the....
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....1 From the above Para from the order of CIT(A), we find that the claim of the assessee is regarding payment of Rs. 94,234/- including the amount of Rs. 36,233/- for reimbursement of expenses. This is by now a settled position of law that if the bill raised for reimbursement of expenses is separate and the bill for service charges is raised separately then there may be case of no deduction of TDS from the reimbursement but the assessee could not produce details that the bills for service charges was raised separately and the claim for reimbursement of expenses was made separately. In the absence of separate bill, composite amount has to be considered for TDS purposes and under these facts, we do not find any reason to interfere in the order of learned CIT(A). Accordingly, ground No. 5 is also rejected. 16. Ground No. 6 is as under: "6. The Ld. CIT (A) erred on facts and in law in not appreciating the facts of the present case that the profit of Rs. 2,93,87,633/-for the year under consideration was inclusive of reversal of provisions of Rs. 2,83,63,000/- and the appellant was to be taxed only for the profit of Rs. 10,24,633/- as stated in the statement of facts." 17. This gr....