1999 (9) TMI 59

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....1961, would have application in the context of the statutory requirement that a return is required to be filed in accordance with the provisions of s. 139(3) of the IT Act, 1961, for the purpose of considering the question of carrying forward of the losses ? 2. Whether, on the facts and in the circumstances of the case, the question of carrying forward of the losses could be considered when it is raised, even though actual carrying forward gets postponed to the subsequent year, when it is specifically pleaded and is a controversy raised in the assessment year in question ? 3. What would be the situation if the return is filed after the statutory date and the proceedings are initiated as a result thereof as has been done in the present....

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....peal by the assessee, the Tribunal held that the question as to whether loss can be set off can arise only in the assessment of the succeeding year or years where there is positive income against which such set off is claimed. It was further held that whether the loss in any year may be carried forward to the following or subsequent years have to be determined by the AO who deals with the assessment of the following or subsequent years. Reliance was placed on a decision of the apex Court in CIT vs. Manmohan Das (1966) 59 ITR 699 (SC): TC 45R.218. Accordingly, the AO was directed to carry forward the loss, Application under s. 256(1) of the Act was rejected and thereafter as stated at the outset Revenue moved under s. 256(2) of the Act, and ....

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....ment, w.e.f. 1st April, 1985, no such loss would be allowed to be carried forward or set off unless the return under s. 139(1) has been filed within the time allowed under sub-s. (1) of s. 139 for filing the return or within such further time as may be allowed by the ITO. There has been subsequent amendment by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1st April, 1989, and the expression "in accordance with the provisions of sub-s. (3) of s. 139" has been substituted for the expression "within the time allowed under sub-s. (1) of s. 139 or within such further time as may be allowed by the ITO". Latter was the provisions governing the field for the assessment year in question, that is 1985-86. Prior to the amendment (effective from 1s....