TaxTMI 
TaxTMI 
2011 (12) TMI 714
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.... CIT(A) ought to have appreciated that the original returns were filed by the assessee within the due date and therefore, there was no reason to deny the carry forward of loss. 4. The relevant facts are that the assessee had filed return of income u/s 139(1) of the Act for the years under the appeals declaring losses for the A.Ys. 2002-03, 2003-04 and 2005-06 and declaring nil income for the A.Y. 2004-05. The assessee had again filed returns of income for the years under consideration in response to the notices issued u/s. 153A of the Act. In these returns, the assessee had claimed interest expenditure on loan from a Credit Co-Operative Society which was not claimed in the returns of income filed u/s. 139(1) of the Act. The A.O. allowed the said expenditure while assessing loss and allowed carry forward of the loss only to the extent declared in the original return. The increase in loss as per returns filed in response to notices u/s. 153A was not allowed to be carried forward by the A.O. in view of the provisions of Section 80 of the Act. The A.O held that as per Section 80 of the Act, the loss which is not determined as per the provision of Section 139(3) of the Act cannot be ca....
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....153A are similar . He emphasized that returns filed in response to the notice issued u/s. 153A were filed beyond the time limit prescribed u/s. 139(5) of the Act. The ld D.R. pointed out that returns in response to notice issued u/s. 153A on 11.7.2008 have been filed after 9 months on 30.3.09. He placed reliance on the following decisions : 1. Steri Mould Pvt. Ltd. Vs. DCIT, ITA No. 3637/DEL/2009 2. Koppind (P) Ltd. Vs. CIT (1994) 207 ITR 228 (Cal). 7. In rejoinder, Ld. A.R. also clarified that provisions of Section 153A provide for fresh assessment of the income and the The Ld A.R. also clarified that provisions of Section 153A provide for fresh assessment of the income and the assessee can also make a fresh claim. In this regard he relied upon the decision of Mumbai Bench of the Tribunal in the case of Eversmile Construction Co. Pvt. Ltd, ITA No. 4238/Mum/2010., A.Y. 2001-02 decided on 30th August 2011. A copy of this decision has been furnished for the perusal of the Bench and the other side. 8. Having gone through the decision of Mumbai Bench of the Tribunal in the case of DCIT Vs. Eversmile Construction Co. Pvt. Ltd. (Supra), we find that an identical issue has been deci....
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.... he will obviously make addition and vice versa." We find that in the above discussion after discussing the issue in detail, the Mumbai Bench has come to the conclusion that there is difference in wordings u/s. 158B(b) and Section 153A of the Act. Provisions u/s. 153A are successor of the special procedure for assessment of search cases under Chapter XIV B starting with Section 158B. Chapter XIV-B required the assessment of "undisclosed income" as a result of search, which has been defined in Section 158B(b) whereas Section 153A dealing with assessment in case of search w.e.f. 1.6.2003 requires the A.O to determine "total income" and not "undisclosed income" under these background, the Bombay Bench of the Tribunal has held that when the A.O has to compute the total income of the assessee on the basis of return filed after considering the submissions made during the course of hearing before him, there cannot be any scope for arguing that the assessee has been rendered powerless to even lodge a claim in respect of which deduction was not allowed earlier. The A.O is fully empowered to consider the question of deductibility as per the provision of the Act. If after going through such ....
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....in within the prescribed time limit, the A.O is bound to take cognizance of the revised return because the original return is replaced by the revised return, held the Tribunal. In the present case before us, undisputedly, the assessment u/s. 153A r.w.s. 143(3) of the Act has been framed on the basis of return filed in response to notice issue u/s. 153A of the Act. Hence, now it is not open to raise contention by the revenue that return was filed beyond the prescribed time period mentioned in the notice issued u/s. 153A of the Act. The return of income filed in response to the notice u/s. 153A on the basis of which assessment in question has been framed thus has replaced the original return for determining the net income in the assessment u/s. 153A of the Act. Thus, in a sense, return filed in response to the notice issued u/s. 153A was a revised return and the assessment was re-assessment. For the purpose of levy of penalty u/s. 271(1)(c ) of the Act, excess income in difference to the originally assessed income may be subject matter under the facts and circumstances of the case that the same was due to concealment of particulars of income or furnishing inaccurate particulars there....