COMMISSIONER OF INCOME TAX Vs. ROHIT ORGANICSP LTD

JUDGEMENT

(1.) The Income-tax Appellate Tribunal, New Delhi, has referred the following question of law under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for opinion to this Court : 1. Whether on the facts and in the circumstances of the case, the learned ITA was legally correct in directing the Assessing Officer to allow carry forward of business loss in the assessment year 1988-89 in contravention of the provisions of Sections 80 and 139(3) in this regard ?

(2.) The brief facts of the case are that the assessee/opposite party (hereinafter referred to as "the assessee"), is a company incorporated under the Companies Act. The assessee filed a return of loss on August 25, 1988. The claim of loss was disallowed on the ground that the return was filed beyond time prescribed under Section 139(1) of the Act. The assessee filed an appeal before the Commissioner of Income-tax (Appeals), which was allowed. Before the Commissioner of Income-tax (Appeals), the assessee contended that the time specified for tiling the return of loss in this case was July 31, 1988, but the application in Form No. 6 was filed on July 30, 1988, vide receipt No. 6 requesting therein that the time for furnishing the return may be extended up to September 30, 1988, and the return was filed on August 25, 1988, much before September 30, 1988. It was contended that the application for extension of time, had not been rejected and nothing had been communicated in this regard, therefore, it was deemed to have been allowed. The Commissioner of Income-tax (Appeals) accepted the plea of the assessee and allowed the appeal. The Revenue filed an appeal before the Tribunal which has been dismissed. The Tribunal accepted the claim of the assessee relying upon the decision in the case of Harmanjit Trust v. CIT reported in [1984]148 ITR214 (P&H).

(3.) Heard learned standing counsel appearing on behalf of the Revenue, and Sri V. Gulati appearing on behalf of the assessee. We do not find any error in the order of the Tribunal. Admittedly, the assessee had sought extension by moving an application in Form No. 6 on July 30, 1988, seeking time up to September 30, 1988, and the return was filed on August 25, 1988. A duty was cast on the officer to intimate to the assessee whether its request for extension of time for furnishing of return had been granted or refused. Application for extension of time had not been rejected and nothing had been communicated in this regard, therefore, the assessee cannot be held responsible for inaction on the part of the Assessing Officer and the application for extension of time is deemed to have been allowed. In this way, the return filed by the assessee is deemed to be within time specified under Section 139(1) of the Act.