ASHIMA HARIHARAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE subject-matter of these two references relates to the assessment years 1980-81 and 1982-83, respectively. THE following questions are referred by the Income-tax Appellate Tribunal, Cochin Bench, for our consideration and consequent answers in regard thereto :

(2.) ON hearing learned counsel for the parties and the Department, there is no controversy with regard to the legal position. If the return as filed on November 10, 1983, with regard to the assessment year 1980-81 could be considered as having been legally and properly filed within the grant of extension of time for filing the return, then the assessee can get the benefit of carrying forward the loss which is in question in these references. ON the other hand, if the position is that the return is filed in pursuance of notice under Section 148 of the Income-tax Act, 1961, in pursuance of which the assessment is carried out under Section 143(3) of the said Act, then the assessee would not have any legal claim to carry forward the loss for the subsequent assessment year.

(3.) TWO appeals were carried to the Commissioner of Income-tax (Appeals), Ernakulam, which came to be dismissed, holding that the filing of the return of the assessment year 1980-81 on November 10, 1983, being beyond the period of two years, from March 31, 1981 (two years expired on March 31, 1983), the return could not be said to have been filed under the provisions of Section 139(4) of the Act. As a consequence the claim for carrying forward of the loss was not accepted confirming the decision of the Income-tax Officer.