2018 (1) TMI 444

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....ave allowed the carry forward loss as claimed by the appellant. 2. On the facts the learned Commissioner (A) ought to have accepted the explanat ion of the appel lant and refrained from upholding the disal lowance of carry forward loss determined for the relevant assessment year as claimed by the appellant. 3. The learned Commissioner (A) ought to have appreciated that the return of income was f i led electronical ly wi thin the due date and f i l ing of ITR-V was a formal ity and delay in f i l ing ITR-V cannot deprive the assessee from claiming carry forward loss duly determined for the relevant assessment yeare. 4. The learned Commissioner (A) ought to have appreciated that there was no violat ion to the provis....

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....rn of income was not filed within the due date as required under section 139(1) of the Act. 3. The facts borne out from the record are that assessee company has e-filed the return of income on 30.09.2008 and has filed the ITR-V on 31.03.2009. Relying upon the Board's Notification No. SO 1281(E) dated 27.07.2007, the AO has concluded that the return of income was due to have been filed on the day when ITR-V was filed i.e., on 31.03.2009. Therefore, since return was not filed within the due date as required under section 139(1) of the Act, no carry forward of losses of Rs. 11,00,25,707/- is allowed for future years. 4. Aggrieved, the assessee preferred an appeal before the CIT(A) with the submission that AO should have appreciated the e....

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....oducts Ltd., (1973) 88 ITR 0192. 7. Besides, he has also placed reliance upon the circular No. 2011/8 dated 18.07.2008. The learned counsel for the assessee further contended that after e-filing of the returns in Form ITR-V containing due verification was required to be submitted only by ordinary post. Instructions which were furnished to assessee specifically stipulated that Form ITR-V should not be sent either by Registered Post or by speed post or courier. In such a situation, the assessee cannot keep a track whether the ITR-V sent by him through ordinary post was received by the department or not. The learned counsel for the assessee has placed heavy reliance upon the order of the Tribunal in Chennai Bench in the case of M/s. Amsteel....

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....as required to be submitted only by ordinary post. As per the instructions stipulated in the Form ITR-V, the Form ITR-V should not be sent either by Registered post or Speed Post or Courier. It can only be sent by ordinary post. In the case of Amsteel Castings Pvt. Ltd., the Tribunal has categorically observed that once the Form ITR-V was not received or any defect is noticed in the return, the defect notice should be issued and opportunity of being heard should be granted to the assessee to remove the defects before treating the return to be invalid return. The relevant observations of the Tribunal are extracted hereunder for the sake of reference: "11. We have considered the rival submissions, perused the orders of the lower auth....

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....fficer disallowing the deduction u/s 80IA of the Act to the assessee. 13. Before us, the ld. A.R of the assessee contended that it is not in dispute that the assessee filed its return of income electronically on 29.9.2009. The assessee, as per the direction of the Department sent the verification form by ordinary post. No notice to remove the defect, if any, in the original return was served upon the assessee and therefore, the Department was not justified in treating the return filed on 29.9.2009 as 'no return'. For the above contention, he placed reliance on the decision of the Hon'ble Bombay High Court in the case of M/s Crawford Bayley (supra). He further contended that in any view of the matter, as the substantial ....

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....electronically on 29.9.2009 as invalid return. In our considered view, in view of the decision of the Hon'ble Bombay High Court in the case of M/s Crawford Bayley(supra) the Department was not permitted to treat the return filed electronically as invalid in absence of receipt of verification form when the Department instructed to dispatch the verification form by ordinary post only and when no notice of defect was served upon the assessee of its intention to treat such return as invalid in absence of receipt of verification form. In these circumstances, we direct the assessee to submit a copy of signed verification form ITR-V to the jurisdictional Assessing Officer within a week of receipt of this order and on so furnishing of the verif....