Deputy Commissioner of Income-tax, V. Shri Abhijit Suresh Jadhav, Pune

ITA 1612/PUN/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5276 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-01-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 08-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Keywords: Revised return
• Section: 143(3); 139(5); 139

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1612/PUN/2015 / ASSESSMENT YEAR : 2011-12 THE DY.COMMISSIONER OF INCOME - TAX, CIRCLE 3, PUNE. . / APPELLANT V/S SHRI ABHIJIT SURESH JADHAV, A 9/10, FLAT NO.4, 2 ND FLOOR, GARIMA APARTMENT, KANCHAN GALLI, OFF LAW COLLEGE ROAD, PUNE 411 004. PAN : ABAPJ5441P. . / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK. REVENUE BY : SHRI MUKESH JHA, JCIT. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE O RDER OF COMMISSIONER OF INCOME TAX (A) 3, PUNE DT.10.09.2015 FOR THE ASSESSMENT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS A PARTNER IN VARIOUS FIRMS AND IS ALSO HAVING R ENTAL INCOME. ASSESSEE FILED HIS RETURN OF INCOME FOR AY. 2011-12 ON 23.03.2013 DECLARING TOTAL INCOME OF RS.2,67,77,785/-. THE CASE WA S / DATE OF HEARING : 11.04.2018 / DATE OF PRONOUNCEMENT: 06.07.2018 2 SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAM ED U/S 143(3) OF THE ACT VIDE ORDER DT.28.03.2014 AND THE TOTAL INCOME WAS DETERMINED AT RS.3,15,50,948/- AGGRIEVED BY THE ORDER O F AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE OR DER DT.10.09.2005 (IN APPEAL NO.PN/CIT(A)-3/DCIT CIR-3,PN/120/20 14- 15) GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW 1. THE ORDER OF THE LD.CIT(A) IS CONTRARY TO LAW AND T O THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) ERRED IN ALLOWING CARRY FORWARD OF LOSS B Y TREATING THE LOSS RETURN AS VALID EVEN THOUGH FILED BEYOND DUE DATE. 3. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE ARGUED A T THE TIME OF THE HEARING, THE ORDER OF LD.CIT(A) MAY BE VACATED AND THAT OF THE AO TO BE RESTORED. 3. ALL THE GROUNDS BEING INTER-CONNECTED, THEY ARE CONSID ERED TOGETHER. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO ON PE RUSING THE RETURN OF INCOME FILED BY THE ASSESSEE NOTICED THAT A SSESSEE HAD SET OF BROUGHT FORWARD OF LOSSES OF RS.47,73,163/- PERTAININ G TO A.Y.2010-11 AGAINST THE INCOME FOR A.Y. 2011-12. HE NOTICED THAT THE RETURN OF INCOME FOR A.Y. 2010-11 WAS FILED BEYOND THE DUE DATE PRESCRIBED U/S 139(1) OF THE ACT. HE WAS OF THE VIEW THAT ONLY IF THE RETURN IS FILED WITHIN THE DUE DATE PRESCRIBED U/S 139(1) O F THE ACT THEN ASSESSEE IS ELIGIBLE TO SET OFF CARRY FORWARD OF LOSSES . HE ACCORDINGLY DENIED THE CLAIM OF SET OFF OF CARRY FORWARD LOSS ES TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARR IED THE MATTER 3 BEFORE LD.CIT(A), WHO GRANTED SUBSTANTIAL RELIEF TO ASSESSEE BY OBSERVING AS UNDER : 3.3 I HAVE CONSIDERED THE SUBMISSION OF THE APPELL ANT AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSING OF FICER HELD THAT THE BUSINESS LOSSES PERTAINING TO THE PREVIOUS YEAR, I. E.2010-11 TO THE TUNE OF RS.47,73,163/- WERE BROUGHT FORWARD AND SET OFF AGAINST THE INCOME IN THE CURRENT ASSESSMENT YEAR, I.E. 2011-12. THE ASSESSING OFFICER NOTED THAT IN A.Y. 2010-11 THE RETURN OF LOSS WAS F ILED BEYOND DUE DATE AS PER SECTION 139(1) AND, THEREFORE, FOLLOWING THE PROVISIONS OF SECTION 139(3) AND PLACING RELIANCE ON THE JUDGMENT IN THE CASE OF ACIT VS. DYNAVISION LTD. (88 ITD 213) (CHENNAI). THE LOSS C OULD NOT BE ALLOWED TO BE CARRIED FORWARD HENCE, THERE WAS NO QUESTION OF ALLOWING ANY SET OFF OF INCOME AGAINST LOSSES CARRIED FORWARD FOR A. Y. 2010-11. 3.4 DURING THE APPELLATE HEARING THE APPELLANT HAS SUBMITTED THAT THE QUESTION OF DETERMINATION OF LOSS SHOULD HAVE B EEN FAIRLY DEALT WITH IN THE ASSESSMENT FOR A.Y. 2010-11. HOWEVER, SINCE THE ASSESSING OFFICER HAS GIVEN A FINDING IN A.Y. 2011-12, THEREF ORE, THE MATTER IS BEING DEALT WITH ON MERITS. 3.5 AN APPRECIATION OF THE FACTS OF THE CASE SHOWS THAT THE APPELLANT FILED HIS RETURN OF INCOME FOR A.Y. 2010-11 ON 15-1 0-2010, WHICH WAS WITHIN TIME (DUE DATE BEING EXTENDED) AS PER THE PR OVISIONS OF SECTION 139(1). SUBSEQUENTLY, THE APPELLANT FOUND THAT IT HAD NEGLECTED TO CONSIDER THE LOSS ON SALE OF SOME LAND AT AGALAMBE IN THE ORIGINAL RETURN FILED ON 15-10-2010. THEREAFTER THE RETURN WAS REVISED ON 28- 04-2010 WHICH IS WITHIN THE TIME ALLOWED U/S.139(5) AND THE ABOVE LOSS OF RS.47,73,163/- WAS CLAIMED AS CARRIED FORWA RD TO THE A.Y. 2011-12. 3.5.1 THE ASSESSING OFFICER HAS PLACED RELIANCE ON THE PROVISIONS OF SECTION 80 AND 139 (3) OF THE INCOME TAX ACT. SECT ION 80 DEALS WITH SUBMISSION OF RETURN OF INCOME FOR CLAIM OF LOSS AN D SAYS THAT A RETURN HAS TO BE FILED WITHIN TIME PRESCRIBED AS PER PROVI SIONS OF SUB-SECTION (3) OF SECTION 139, TO BE ALLOWED TO BE CARRIED FOR WARD FOR SET OFF U/S.72,73, 74 OR 74A. REFERENCE MADE TO SECTION 13 9(3) AND SECTION 80 SHOWS THAT IF A PERSON WHO HAS SUSTAINED LOSS UNDER THE HEAD PROFITS & GAINS OF BUSINESS & PROFESSION OR CAPITAL GAINS AND CLAIMS THE CARRY FORWARD OF SUCH LOSS U/S.72,73,74 OR 74A THEN HE MAY FURNISH WITHIN THE TIME ALLOWED U/S.139(1) A RETURN OF LOSS AND THE PROVISIONS OF THE ACT SHALL APPLY AS IF IT WERE A RETURN UNDER SUB-SECTION (1) OF SECTION 139. SECTION 139 STATES THAT IF A CARRY FO RWARD OF LOSS HAS TO BE CLAIMED THEN THE RETURN HAS TO BE SUBMITTED WITHIN TIME GIVEN U/S.139(1). THERE IS NO POWER VESTED IN THE ASSESS ING OFFICER TO EXTEND THE TIME FOR FURNISHING THE LOSS RETURN. IT APPEAR S THAT THE LEGISLATIVE INTENT HERE IS TO MAKE FILING OF RETURN MANDATORY F OR ASSESSEES WHO WISH TO CARRY FORWARD THE LOSS. 3.6 AS THE SECTION ITSELF QUOTES, ONCE THE RETURN H AS BEEN FILED WITHIN THE TIME ALLOWED U/S.139(1), WITHIN DUE DATE, THEN OTHER PROVISIONS OF SECTION 139 APPLY. THE QUESTION IN THE CASE OF THE APPELLANT IS WHEN THE ORIGINAL RETURN FILED WELL WITHIN THE DUE DATE, IS A RETURN WITH POSITIVE INCOME, THEN CAN SUCH A RETURN BE REVISED TO CLAIM LOSS SUBSEQUENTLY. IT IS SEEN THAT THERE IS NO BAR WHEN A POSITIVE INCOME IS REVISED TO ENHANCE THE INCOME OR TO EVEN REDUCE THE INCOME. IN A SIMILAR WAY IF A LOSS RETURN IS FILED U/S.139(3) TH ERE IS NO BAR IF THE LOSS IS ENHANCED OR THE LOSS IS REDUCED BY FILING OF REV ISED RETURN. THE OBJECTION OF THE ASSESSING OFFICER IS IF A POSITIVE INCOME IS REVISED TO A 4 LOSS THEN IT CANNOT BE ALLOWED TO BE CARRIED FORWAR D. THE APPELLANT CLAIMS THAT SINCE REVISED RETURN IS FILED WITHIN TI ME PRESCRIBED U/S.139(5), THE ASSESSING OFFICER SHOULD HAVE CONSI DERED THE REVISED RETURN WHILE FRAMING THE ASSESSMENT ORDER. 3.6.1. IN THE CASE OF SUJAN TEXTILE PVT. LTD. VS. ACIT (2004) 88 ITD 317 (MAD.) THE FOLLOWING PROPOSITIONS WERE UPHELD. 1. ONCE THE RETURN OF INCOME IS FILED U/S 139(3), FOR PROCEDURE OF ASSESSMENT THE SAID RETURN IS DEEMED TO BE RETURN O F INCOME FILED U/S 139(1). 2. ONCE THE RETURN FILED U/S 139(3) IS TREATED AS RETU RN FILED U/S 139(1) THE ASSESSEE GETS THE BENEFIT OF FILING THE REVISED RETURN U/S 139(5). THE OPERATIVE PORTION OF THE ORDER IS REPRODUCED HE REIN BELOW : 7. WE HEARD BOTH SIDES IN DETAIL. AN ASSESSEE IS E LIGIBLE TO CLAIM THE BENEFIT OF CARRY FORWARD OF UNABSORBED BUSINESS LOS S ON CONDITION THAT A RETURN OF LOSS IS FILED UNDER SECTION 139(3) . THIS CONDITION IS LAID DOWN IN SECTION 80 OF THE IT ACT. SECTION 139(3) ENABLES AN ASSESSEE TO FILE A LOSS RETURN. ONCE A RETURN IS FILED UNDER SECTION 139(3) , FOR THE PROCEDURE OF ASSESSMENT, THE SAID ASSESSMENT IS DEE MED AS A RETURN FILED UNDER SECTION 139(1) . ONCE A RETURN FILED UNDER SECTION 139(3) IS TREATED AS A RETURN UNDER SUB-SECTION (1), THE ASSE SSEE GETS THE BENEFIT OF FILING A REVISED RETURN UNDER SUB-SECTION (5). T HE REVISED RETURN IS TO BE FILED WITHIN THE TIME PROVIDED FOR IT. THEREFORE, IT IS PERMISSIBLE TO READ SUB-SECTION (3) ALONG WITH SUB-SECTION (5) OF SECTION 139 . WHEN READ SO, IT IS TO BE SEEN THAT IT IS PERMISSIBLE TO FILE EVEN A REVISED RETURN. WHETHER THE REVISED RETURN IS A LOSS RETURN OR AN INCOME RETURN, IT HAS TO BE FILED WITHIN THE TIME-PROVIDED. ONCE A REVISED RETURN IS FILED UNDER SUB-SECTION (5), IT REPLACES THE RETURN EARLI ER FILED BY THE ASSESSEE. IF THE ASSESSEE HAS FILED A RETURN UNDER SUB-SECTION (1), FILING OF THE REVISED RETURN UNDER SUB-SECTION (5) REPLACE S THE ORIGINAL RETURN FILED UNDER SUB-SECTION (1). LIKEWISE, IF THE ASSES SEE HAS FILED THE LOSS RETURN UNDER SUB-SECTION (3), AND WHEN A REVISED LO SS RETURN IS FILED UNDER SUB-SECTION (5), THE REVISED LOSS RETURN REPL ACES THE ORIGINAL LOSS RETURN FILED UNDER SUB-SECTION (3). THEREFORE IT IS NOT PROPER TO PRESUME THAT THERE IS NO PROVISION FOR FILING A REVISED LOS S RETURN. THE ONLY POINT TO BE LOOKED INTO IS WHETHER THE REVISED LOSS RETUR N WAS FILED WITHIN THE TIME PROVIDED UNDER SUB-SECTION (5) OF SECTION 139 . BY FILING A REVISED LOSS RETURN UNDER SUB-SECTION (5), THE FACTUM OF FI LING A LOSS RETURN UNDER SUB-SECTION (3) IS NOT LOST, BUT WHAT HAPPENS IF THE REVISED RETURN REPLACES THE ORIGINAL RETURN. THAT PROCEDURAL PROCE SS PROVIDED UNDER SECTION 139 DOES NOT IN ANY WAY AFFECTS SECTION 80 OR VICE-VERSA. THE EQUATION BETWEEN SECTION 139(3) AND SECTION 80 IS INDEPENDENT. SECTION 80 PROVIDES THAT THE LOSS DETERMINED BY AN AO IN PURSUANCE OF THE LOSS RETURN FILED UNDER SECTION 139(3) SHALL BE CARRIED FORWARD FOR THE SUCCEEDING ASSESSMENT YEARS. THE OP ERATION OF SECTION 80 ENDS THERE. THE INTER SE RELATION BETWEEN SUB-SECT IONS (1), (3) AND (5) OF SECTION 139 DOES NOT HAVE AN EQUATION OR INTER-LINKAGE WITH SECTION 80 OF THE IT ACT. THEREFORE, IF THE ASSESSEE HAS FILE D A LOSS RETURN UNDER SUB-SECTION (3) OF SECTION 139 WITHIN THE PERIOD PROVIDED UNDER THE ACT, AND IF THE ASSESSEE HAS FILED A REVI SED LOSS RETURN UNDER SUB-SECTION (5) THEREOF, AGAIN WITHIN THE PRESCRIBE D TIME-LIMIT, THE AO IS BOUND TO TAKE COGNIZANCE OF THE REVISED RETURN, BEC AUSE THE ORIGINAL RETURN IS REPLACED BY THE REVISED RETURN. 5 3.6.2. IN THE CASE OF NALWA INVESTMENT LTD. (2010) 322 ITR 0233, THE DELHI HIGH COURT ALLOWED THE LOSS CLAIMED DURING AS SESSMENT PROCEDURE HOLDING THAT THE ASSESSING OFFICER CANNOT REFUSE TO ALLOW LOSS BEING NOT CLAIMED WITHIN THE MEANING OF SECTION 139 (3). THE DECISION OF THE DELHI HIGH COURT IS NOW FINAL AS DEPARTMENTAL S LP HAS BEEN DISMISSED. EVEN THOUGH IN THE CASE BEFORE THE HON BLE HIGH COURT THE ORIGINAL RETURN HAD BEEN FILED U/S 139(3), THE LOSS ES CLAIMED FOR THE FIRST TIME DURING ASSESSMENT PROCEEDINGS WERE ALLOWED CON CURRING WITH THE TRIBUNALS OBSERVATION REPRODUCED HEREIN BELOW : ..THE TRIBUNAL WENT ON TO OBSERVE WHILE ALLOWING THE CLAIM OF LOSS BY THE ASSESSEE THAT THE FACT THAT IN THE R ETURN FILED BY THE ASSESSEE WHEREIN THE ASSESSEE DOES NOT TAKE A P ROPER POSITION, CANNOT BE A GROUND TO TAKE ADVANTAGE OF T HE IGNORANCE OF THE ASSESSEE IF THE ASSESSEE IS OTHERWISE ENTITL ED TO RELIEF AND/OR CLAIM OF LOSS AS IN THE INSTANT CASE. KEEPIN G THE AFORESAID RATIONALE IN MIND THE TRIBUNAL VIDE ORDER DATED 05.06.2000 HAD DIRECTED THE ASSESSING OFFICER TO AL LOW THE ASSESSEE S CLAIM OF LOSS ON SALE OF SRNCDS AT THE RATE OF RS 111/- AS A BUSINESS LOSS. IT IS EVIDENT THAT THE AS SESSING OFFICER (JT. COMMISSIONER OF INCOME TAX) IN THE SECOND ROUN D WHILE GIVING EFFECT TO THE ORDERS OF THE TRIBUNAL DATED 0 5.06.2000 WAS DETERMINING THE INCOME/LOSS IN PURSUANCE OF AN ORIG INAL RETURN FILED BY THE ASSESSEE UNDER SECTION 139 OF THE ACT. IN THE RETURN THE ASSESSEE HAD CLAIMED ERRONEOUSLY A LOSS TO A LE SSER EXTENT THAT IS AT RS 91/- AGAINST DWS AS AGAINST SRNCDS WH ICH WAS CORRECTED PURSUANT TO A STAND TAKEN BEFORE CONCLUSI ON OF PROCEEDINGS BY THE ASSESSING OFFICER IN THE FIRST R OUND AND A STAND WHICH WAS SUSTAINED BY THE TRIBUNAL BY ITS OR DER DATED 05.06.2000. IN VIEW OF THE SAID CIRCUMSTANCES OBTAI NING IN THE PRESENT CASE THE TRIBUNAL IN THE SECOND ROUND VIDE THE IMPUGNED JUDGMENT HAS CORRECTLY HELD IN OUR OPINION , THAT BOTH THE CIT(A) AND THE ASSESSING OFFICER HAD MISDIRECTE D THEMSELVES IN LAW IN PREVENTING THE CARRY ITA335/2006 PAGE 15 OF 18 FORWARD AND THE SET OFF OF THE ASSESSED LOSS AGAINS T SUBSEQUENT PROFITS AS THE CONDITIONS PRESCRIBED FOR TRIGGERING THE PROVISIONS OF SECTION 80 OF THE ACT WERE NOT PRESENT IN THE IN STANT CASE. 3.6.3. FINALLY, THE MUMBAI ITAT D BENCH IN THE CASE OF RAMESH S. SHAH VS. ACIT 143 TTJ 166 (MUM.) WAS FACED WITH EXA CTLY THE SAME QUESTION AS IN THE CASE OF THE APPELLANT AND HELD T HAT WHERE THE ASSESSEE HAD FILED ORIGINAL RETURN OF INCOME U/S 13 9(1) DECLARING THE INCOME AND CLAIM FOR CARRY FORWARD OF LOSS WAS MADE ONLY IN REVISED RETURN U/S 139(5) THERE WAS NO JUSTIFICATION TO DEN Y THE CARRY FORWARD OF LOSS. THE OPERATIVE PORTION OF THE DECISION IS REPRODUCED HEREIN BELOW : 10 IN OUR HUMBLE OPINION CORRECT INTERPRETATION OF S. 80, AS PER THE LANGUAGE USED BY THE LEGISLATURE, CO NDITION FOR FILING REVISED RETURN OF LOSS UNDER S. 139(3) IS CO NFINED TO THE CASES WHERE THERE IS ONLY A LOSS IN THE ORIGINAL RE TURN FILED BY THE ASSESSEE AND NO POSITIVE INCOME AND ASSESSEE DE SIRES TO TAKE BENEFIT OF CARRY FORWARD OF SAID LOSS. ONCE AS SESSEE DECLARES POSITIVE INCOME IN ORIGINAL RETURN FILED U NDER S. 139(1) BUT SUBSEQUENTLY FINDS SOME MISTAKE OR WRONG STATEM ENT AND FILES REVISED RETURN DECLARING LOSS THEN CAN HE BE DEPRIVED OF THE BENEFIT OF CARRY FORWARD OF SUCH LOSS. IN OUR HUMBL E OPINION, IF WE ACCEPT INTERPRETATION GIVEN BY THE AUTHORITIES B ELOW, IT WOULD FRUSTRATE THE OBJECT OF S. 80. SEC. 80 IS A CAP ON THE RIGHT OF THE 6 ASSESSEE, WHEN THE ASSESSEE CLAIMS THAT HE HAS NO T AXABLE INCOME BUT ONLY A LOSS BUT DOES NOT FILE THE RETURN OF INCOME DECLARING THE SAID LOSS AS PROVIDED IN SUB-S. (3) O F S. 139. IT IS PERTINENT TO NOTE HERE THAT LEGISLATURE HAS DEALT W ITH TWO SPECIFIC SITUATIONS (I) UNDER S. 139(1), IF THE ASSESSEE HAS A TAXABLE INCOME CHARGEABLE TO TAX THEN IT IS A STATUTORY OBL IGATION TO FILE THE RETURN OF INCOME WITHIN THE TIME ALLOWED UNDER S. 139(1). SO FAR AS S. 139(3) IS CONCERNED, IT ONLY PROVIDES FOR FILING THE RETURN OF LOSS IF THE ASSESSEE DESIRES THAT THE SAME SHOUL D BE CARRIED FORWARD AND SET OFF IN FUTURE. AS PER THE LANGUAGE USED IN SUB-S. (3) OF S. 139, IT IS CONTEMPLATED THAT WHEN THE ASS ESSEE FILES THE ORIGINAL RETURN, AT THAT TIME, THERE SHOULD BE LOSS AND THE ASSESSEE DESIRES TO CLAIM SAID LOSS TO BE CARRIED F ORWARD AND SET OFF IN FUTURE ASSESSMENT YEARS. SUB-S. (1) OF S. 13 9 CASTS STATUTORY OBLIGATION ON THE ASSESSEE WHEN THERE IS POSITIVE INCOME. IN THE PRESENT CASE, ADMITTEDLY, THE ASSESS EE FILED THE RETURN OF INCOME DECLARING THE POSITIVE INCOME AND EVEN IN THE REVISED RETURN, THE ASSESSEE HAS DECLARED THE POSIT IVE INCOME AS THE LOSS IN RESPECT OF THE SALE OF SHARES, WHICH CO ULD NOT BE SET OFF, INTER-SOURCE OR INTER-HEAD UNDER S. 70 OR 71 O F THE ACT. WE HAVE TO INTERPRET THE PROVISIONS OF ANY STATUTE TO MAKE THE SAME WORKABLE TO THE LOGICAL ENDS. AS PER THE PROVISIONS OF SUB-S. (5) OF S. 139, IN BOTH THE SITUATIONS WHERE THE ASSESSE E HAS FILED THE RETURN OF POSITIVE INCOME AS WELL AS RETURN OF LOSS AT THE FIRST INSTANCE AS PER THE TIME-LIMIT PRESCRIBED AND SUBSEQ UENTLY, FILES THE REVISED RETURN THEN THE REVISED RETURN IS TREAT ED AS VALID RETURN. IN THE PRESENT CASE, AS THE ASSESSEE FILED ITS ORIGINAL RETURN DECLARING THE POSITIVE INCOME AND HENCE, IN OUR OPINION, SUBSEQUENT REVISED RETURN IS VALID RETURN ALSO AND THE ASSESSEE IS ENTITLED TO CARRY FORWARD OF LONG-TERM CAPITAL LOSS. SUB-SS. (1) AND (3) OF S. 139 PROVIDE FOR THE DIFFERENT SITUATI ONS AND IN OUR OPINION, THERE IS NO CONFLICT IN APPLICABILITY OF B OTH THE PROVISIONS AS BOTH THE PROVISIONS ARE APPLICABLE IN THE DIFFER ENT SITUATIONS. WE ARE, THEREFORE, OF THE OPINION THAT THERE IS NO JUSTIFICATION TO DENY THE ASSESSEE TO CARRY FORWARD THE LOSS. WE, AC CORDINGLY, DIRECT THE AO TO ALLOW THE ASSESSEE TO CARRY FORWAR D THE LOSS. 3.7 IN VIEW OF THE ABOVE FACTS AND RATIO OF JUDICIAL DECISION (SUPRA) GROUNDS OF APPEAL NO.1 TO 5 ARE ALLOWED. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPE AL BEFORE US. 5. BEFORE US, LD. D.R. SUBMITTED THAT SINCE THE ASSESSEE H AD NOT FILED THE RETURN OF INCOME FOR A.Y. 2010-11 WITHIN THE PRE SCRIBED TIME, THE ASSESSEE IS NOT ELIGIBLE TO SET OFF BROUGHT FORWAR D BUSINESS LOSSES OF A.Y. 2010-11 AGAINST THE INCOME OF A.Y. 2011-12. HE THEREFORE SUBMITTED THAT THE RETURN FILED BY THE ASSESS EE CANNOT BE SAID TO BE A RETURN U/S 139(1) OF THE ACT AND THEREFORE LD.CIT(A) HAS WRONGLY HELD THAT ASSESSEE IS ELIGIBLE TO CLAIM SET OFF BROUG HT FORWARD 7 BUSINESS LOSSES. IN SUPPORT OF HIS CONTENTIONS, HE RELIED ON THE DECISION OF VISHAKHAPATNAM TRIBUNAL IN THE CASE OF M. NAREN DRANATH VS. ACIT REPORTED IN (2005) 147 TAXMAN 58 AND THE DECISIO N OF BANGALORE TRIBUNAL IN THE CASE OF KARNATAKA FOREST DEVE LOPMENT CORP. LTD., VS. CIT REPORTED IN (2012) 23 TAXMANN.COM 314 (BANG). HE THUS SUPPORTED THE ORDER OF AO. LD.A.R. ON THE OTHE R HAND, REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A) AN D ALSO RELIED ON THE DECISIONS SUBMITTED BEFORE LD.CIT(A). HE FURTHER SUBMITTED THAT HONBLE GUJARAT HIGH COURT IN THE CASE O F PCIT VS. BABUBHAI RAMANBHAI PATEL REPORTED IN (2017) 84 TAXMANN.C OM 32 (GUJ) HAS HELD THAT WHEN ASSESSEE HAS FILED ORIGINAL RETUR N U/S 139(1) OF THE ACT AND REVISED THE SAME WITHIN THE PRESCRIBED PERIOD U/S 139(5) OF THE ACT, THE CLAIM OF CARRY FORWARD OF LOSSES RAISE D IN THE FIRST TIME IN THE RETURN WAS TO BE ALLOWED. HE ALSO PLACED RELIANCE ON THE DECISION IN THE CASE OF RAMESH R. SHAH VS. ACIT REPOR TED IN 143 TTJ 166 (MUM). HE THUS SUPPORTED THE ORDER OF LD.CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESP ECT TO ALLOWABILITY OF CLAIM OF SET OF BROUGHT FORWARD LOSSES. WE FIND T HAT LD.CIT(A) WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE H AS NOTED THAT THE ASSESSEE HAD ORIGINALLY FILED THE RETURN OF INCOME FOR A.Y.2010-11 ON 15.10.2010 WHICH WAS WITHIN THE TIME (DUE DA TE BEING EXTENDED) AS PER THE PROVISIONS OF SEC.139(1) OF THE ACT. SUBSEQUENTLY ON REALIZING THAT THE LOSS OF RS.47,73,163/- W HICH WAS INADVERTENTLY NOT CLAIMED, ASSESSEE FILED THE REVISED RETU RN WITHIN THE TIME PRESCRIBED U/S 139(5) OF THE ACT AND THE LOSS OF RS.4 7,73,163/- WAS CLAIMED AND ASSESSEE HAD CARRIED IT FORWARD TO A.Y. 2010-11. THE CONTENTION OF THE REVENUE IS THAT ONLY THE RETURN FILED IN 8 ACCORDANCE WITH THE PROVISIONS OF SEC.139(3) OF THE ACT WO ULD BE CONSIDERED AS FOR AS CARRY FORWARD OF LOSS IS CONCERNED. WE FIND THAT HONBLE GUJARAT HIGH COURT IN THE CASE OF PCIT VS . BABUBHAI RAMANBHAI PATEL (SUPRA) HAS HELD THAT WHERE THE ASSESSEE HAS FILED ORIGINAL RETURN U/S 139(1) OF THE ACT AND REVISED IT WITHIN T HE PRESCRIBED PERIOD U/S 139(5) OF THE ACT, THEN CLAIM OF CARRY FORWARD OF LOSSES FOR THE FIRST TIME IN THE REVISED RETURN WAS TO BE ALLOWED. THE RELEVANT FINDINGS OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF PCIT VS. BABUBHAI RAMANBHAI PATEL (SUPRA) ARE AS UNDER : 5. UNDER SUB-SECTION (1) OF SECTION 139, EVERY PER SON WHOSE INCOME FOR THE PREVIOUS YEAR EXCEEDS THE MAXIMUM AMOUNT NO T CHARGEABLE TO TAX, IS REQUIRED TO FILE A RETURN BEFORE THE DUE DA TE. SUB-SECTION (3) OF SECTION 139 PROVIDES THAT ANY PERSON WHO HAS SUSTAI NED A LOSS AND CLAIMS THAT THE LOSS SHOULD BE CARRIED FORWARD WOUL D FILE A RETURN O LOSS WITHIN THE TIME PRESCRIBED UNDER SUB-SECTION ( 1) AND THEREUPON ALL THE PROVISIONS OF THE ACT SHALL APPLY AS IF IT WAS A RETURN UNDER SUB- SECTION (1) OF SECTION 139 OF THE ACT. UNDER SUB-SE CTION (4) OF SECTION 139, A PERSON WHO HAS NOT FURNISHED A RETURN WITHIN THE TIME ALLOWED UNDER SUB-SECTION (1), MAY STILL FURNISH A RETURN A T ANY TIME BEFORE THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE C OMPLETION OF THE ASSESSMENT WHICHEVER IS EARLIER. SUB-SECTION (5 ) OF SECTION 139 PROVIDES THAT ANY PERSON HAVING FURNISHED A RETURN UNDER SUB-SECTION (1) OR SUB-SECTION (4) DISCOVERS ANY OMISSION OR A WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN ANY TIME B EFORE THE EXPIRY OF ONE YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR O R BEFORE THE COMPLETION OF THE ASSESSMENT WHICHEVER IS EARLIER. ] 6. SUB-SECTION (5) OF SECTION 139, THEREFORE, GIVES RIGHT TO AN ASSESSEE WHO HAS FURNISHED A RETURN UNDER SUB-SECTION (1) OR SUB-SECTION (4) TO REVISE SUCH RETURN ON DISCOVERY OF ANY OMISSION OR A WRONG STATEMENT. SUCH REVISED RETURN, HOWEVER, CAN BE FILED BEFORE T HE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR O R BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. THIS IS PRECISELY WHAT THE ASSESSEE DID WHILE EXERCISING THE RIGHT TO REVISE THE RETURN. SUB-SECTION (5) OF SECTION 139 DOES NOT ENVISAGE A SITUATION WHEREUPON REVISING THE RETURN IF A CASE FOR LOSS ARISES WHICH THE ASSESSEE WISHES TO CARRY FORWARD, THE SAME WOULD BE IMPERMISSIBLE. IN TERMS, SUB- SECTION (5) OF SECTION 139 ALLOWS THE ASSESSEE TO R EVISE THE RETURN FILED UNDER SUB-SECTION (1) OR SUB-SECTION (4) AS LONG AS THE TIME FRAME PROVIDED THEREIN IS ADHERED TO AND THE REQUIREMENT OF THE REVISED RETURN HAS ARISEN ON DISCOVERY OF ANY OMISSION OR A WRONG STATEMENT IN THE RETURN ORIGINALLY FILED. ACCEPTING THE CONTE NTION OF THE REVENUE WOULD AMOUNT TO LIMITING THE SCOPE OF REVISING THE R ETURN ALREADY FILED BY THE ASSESSEE FLOWING FROM SUB-SECTION (5). NO SU CH LANGUAGE OR INTENTION FLOWS FROM SUCH PROVISION. 9 7. BEFORE US, REVENUE HAS NEITHER POINTED OUT ANY CONTR ARY BINDING DECISION IN ITS SUPPORT NOR HAS CONTROVERTED THE FINDINGS OF LD.CIT(A). WE THEREFORE RELYING ON THE AFORESAID DECISION O F HONBLE GUJARAT HIGH COURT IN THE CASE OF BABUBHAI RAMANBHAI P ATEL (SUPRA), ARE OF THE VIEW THAT NO INTERFERENCE TO THE ORDER OF LD.C IT(A) IS CALLED FOR. THUS, THE GROUNDS OF REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 6 TH DAY OF JULY, 2018. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 6 TH JULY, 2018. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-2, PUNE. PR.CIT-1,PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $+,-/ GUARD FILE. / BY ORDER // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.