M/s Kerala State Electronics Dev.corporation Ltd, Trivandrum V. DCIT, Trivandrum

ITA 485/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58359 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 16-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: VIJAY NARAYAN GOVIND
• Keywords: Revised return
• Section: 139(5); 2

Judgement Text

1 ITA NO.485/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 485/COCH/2010 (ASSESSMENT YEAR 2005-06) M/S KERALA STATE ELECTRONICS VS DY.CIT, CIR.1(1) DEVELOPMENT CORPORATION LTD THIRUVANANTHAPURAM PAN : AABCK1319E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY NARAYAN GOVIND RESPONDENT BY : SMT. VIJAYAPRABHA DATE OF HEARING : 19-03-2012 DATE OF PRONOUNCEMENT : 29-03-2012 O R D E R PER N.R.S. GANESAN (JM) BEING AGGRIEVED BY THE ORDER OF COMMISSIONER (APPE ALS)-I, TRIVANDRUM DATED 19- 05-2010 FOR THE ASSESSMENT YEAR 2005-06 THE ASSESSE E FILED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 2. SHRI VIJAY NARAYAN GOVIND, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE FILED RETURN OF INCOME DISCLOSING LOSS WITHIN THE TIME PRESCRIBED U/S 139(1) OF THE ACT. AT THE TIME OF FILING OF THE RETURN TH E AUDIT COULD NOT BE FINALIZED, THEREFORE, THE ASSESSEE SHOWED PROVISIONAL LOSS. AFTER COMPLE TING THE AUDIT, THE ASSESSEE HAS FILED REVISED RETURN DISCLOSING THE CORRECT LOSS WITHIN T HE PERIOD PROVIDED U/S 139(5) OF THE ACT. THE REVISED RETURN FILED BY THE ASSESSEE WAS NOT ACTED UPON. ON APPEAL FILED, THE COMMISSIONER OF INCOME-TAX(A) FOUND THAT THE REVISE D RETURN CANNOT BE TREATED AS RETURN SINCE THE ASSESSEE HAS ORIGINALLY FILED LOSS RETURN WITHIN THE DUE DATE SPECIFIED U/S 2 ITA NO.485/COCH/2010 139(1) OF THE ACT. THE LD.REPRESENTATIVE PLACED HI S RELIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT IN COMMISSIONER OF INCOME-TAX VS PERIYAR DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD (2004) 266 ITR 705(MAD) AND THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN THE CASE OF DHAMPUR SUGAR MILLS LTD VS COM MISSIONER OF INCOME-TAX (1973) 90 ITR 236 (ALL). 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SU BMITTED THAT THE ASSESSEE HAS FILED THE ORIGINAL RETURN BASED ON PROVISIONAL ACCO UNTS. THE RETURN WAS FILED WITHIN THE TIME PRESCRIBED U/S 139(1) OF THE ACT. SINCE THE O RIGINAL RETURN WAS FILED ON THE BASIS OF THE PROVISIONAL ACCOUNTS, THE CARRY FORWARD OF LOSS CANNOT BE ALLOWED WHICH WAS CLAIMED ON THE BASIS OF THE PROVISIONAL ACCOUNTX. THEREFOR E, THE REVISED RETURN FILED BY THE ASSESSEE U/S 139(5) CANNOT BE ACTED UPON. ACCORDIN G TO THE LD.DR, THE REVISED RETURN FILED BY THE ASSESSEE CANNOT BE TREATED AS RETURN O F LOSS FOR THE PURPOSE OF CARRY FORWARD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS FILED RETURN OF INCOME DISCLOSING LOSS ON THE BASIS OF THE PROVISIO NAL ACCOUNT WITHIN THE TIME LIMIT PRESCRIBED U/S 139(1) OF THE ACT. IT IS ALSO NOT I N DISPUTE THAT THE ASSESSEE HAS FILED REVISED RETURN ON THE BASIS OF THE AUDITED STATEMEN T WITHIN THE TIME PROVIDED U/S 139(5) OF THE ACT. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THE RETURN OF LOSS FILED U/S 139(1) ON THE BASIS OF THE PROVISIONAL ACCOUNTS CAN BE RECTIFIED BY FILING A REVISED RETURN U/S 139(5) OF THE ACT. THIS ISSUE WAS CONSIDERED B Y THE MADRAS HIGH COURT IN THE CASE OF PERIYAR DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD (SUPRA). THE MADRAS HIGH COURT AFTER CONSIDERING THE PROVISIONS OF SECTION 139(1), 139(3) AND 139(5) OF THE ACT FOUND THAT THE RETURN OF LOSS U/S 139(3) CAN BE FILED WIT HIN THE TIME ALLOWED U/S 139(1) OF THE ACT. ONCE THE RETURN IS FILED, ALL THE PROVISIONS OF THE INCOME-TAX ACT SHALL APPLY AS IF SUCH RETURN WAS FILED U/S 139(1) OF THE ACT. THERE FORE, THE PROVISIONS OF SECTION 139(5) 3 ITA NO.485/COCH/2010 CANNOT BE EXCLUDED. IN FACT, THE MADRAS HIGH COURT HAS OBSERVED AS FOLLOWS AT PAGE 707 OF THE ITR: A BARE PERUSAL OF THE AFORESAID TWO PROVISIONS, M ORE PARTICULARLY THE PROVISION CONTAINED IN SECTION 139(3), MAKES IT CLEAR THAT A RETURN OF LOSS FILED UNDER SECTION 139(3) MAY BE FILED WITHIN THE TIME ALLOWED UNDER SECTION 139(1). ONCE SUCH A RETURN IS FILED, ALL T HE PROVISIONS OF THE INCOME-TAX ACT SHALL APPLY AS IF SUCH RETURN HAS BE EN FILED UNDER SECTION 139(1). THIS POSITION IS CLEAR FROM THE EXPRESSION . ALL THE PROVISIONS OF THIS ACT SHALL APPLY AS IF IT WERE A RETURN UNDER S UB-SECTION (1). IN OTHER WORDS, A RETURN FILED UNDER SECTION 139(3) IS DEEME D TO BE A RETURN FILED UNDER SECTION 139(1). THE PROVISION CONTAINED IN S ECTION 139(3) MAKES IT CLEAR THAT ALL THE PROVISIONS OF THIS ACT SHALL APP LY TO SUCH A RETURN AS IF IT WERE A RETURN UNDER SECTION 139(1). IN VIE3W OF SU CH A SPECIFIED PROVISION, THERE IS NO REASON TO EXCLUDE THE APPLIC ABILITY OF SECTION 139(5) TO A RETURN FILED UNDER SECTION 139(3). A SIMILAR VIEW WAS TAKEN BY THE ALLAHABAD HIGH COUR T IN THE CASE OF DHAMPUR SUGAR MILLS LTD (SUPRA). BY RESPECTFULLY FOLLOWING THE J UDGMENT OF MADRAS HIGH COURT IN THE CASE OF PERIYAR DISTRICT CO-OPERATIVE MILK PRODUCER S UNION LTD (SUPRA) AND THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN THE CASE OF DHAMPUR SUGAR MILLS LTD (SUPRA) WE SET ASIDE THE ORDER OF AUTHORITIES BELOW AND DIRECT THE ASSES SING OFFICER TO PROCESS THE REVISED RETURN FILED BY THE ASSESSEE U/S 139(5) AND QUANTIF Y THE LOSSES IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF MARCH, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 29 TH MARCH, 2012 PK/- 4 ITA NO.485/COCH/2010 COPY TO: 1. M/S KERALA STATE ELECTRONICS DEVELOPMENT CORPORATIO N LTD, TRIVANDRUM 2. THE DY.CIT, CIR.1(1), THIRUVANANTHAPURAM 3. COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH