COMMISSIONER OF INCOME TAX vs NAGINIMARA VENEER and SAW MILLS (P.) LTD.

D. N. BARUAH, J. :

The following question has been referred under s. 256(1) of the IT Act at the instance of the Department :

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the order of the CIT(A) in directing the Assessing Officer to allow carry forward of loss to the assessee although the assessee failed to file the return within the time prescribed under s. 139(3) of the IT Act, 1961 ?"

To answer the reference, it is necessary to narrate the short facts of the case.

The Assessing Officer (AO) mentioned in the assessment order that the total loss was computed at Rs. 2,23,087. He mentioned that the loss computed was not allowed to be carried forward as the assessee did not file the return within the time prescribed under s. 139(1). The assessee took up the matter before the CIT(A), who, following the decision of the Calcutta High Court in Presidency Medical Centre (P.) Ltd. Vs. Commissioner of Income Tax, allowed the claim of the assessee. The Revenue took up the matter before the Tribunal which after considering all the aspects and considering various decisions including the decision of the Supreme Court in the case of Brij Mohan Vs. Commissioner of Income Tax , New Delhi, , where it was held that a return filed within the extended period was a good return in the sense that the ITO was bound to take it into consideration, affirmed the order passed by the CIT(A). Hence, the present reference.

We have heard Mr. D. K. Talukdar, learned counsel appearing on behalf of the Revenue, and Mr. R. K. Jain, appearing on behalf of the assessee.

The question that falls for consideration is, whether under the facts and circumstances of the present case, it can be said that the return was filed within time.

Under s. 139(1) of the IT Act, every person, if his total income or the total income of any other person in respect of which he is assessable under the Act during the previous year exceeded the maximum amount which is not chargeable to Income Tax, shall furnish a return of his income or the income of such other person during the previous year, in the prescribed form. Under sub-s. (4)(a) of s. 139, any person who fails to furnish a return within the time allowed to him under sub-s. (1) or sub-s. (2) may, before the assessment is made, furnish the return for any previous year at any time before the end of the period specified in cl. (b), and the provisions of sub-s. (8) shall apply in every such case. The period referred to in cl. (b)(iii) shall be, where the return relates to a previous year relevant to any other assessment year, two years from the end of such assessment year.

Admittedly, the assessment year was 1982-83. The return was filed on 6th July, 1983, i.e., within two years from the end of the assessment year. In view of the decision of the apex Court in Commissioner of Income Tax, Punjab Vs. Kulu Valley Transport Co. P. Ltd., the return filed by the assessee must be deemed to be filed within the time prescribed so as to attract the provisions of s. 72 of the Act. Therefore, the reference is answered in the affirmative and against the Department.

In the facts and circumstances of the case, there will be no direction as to costs.