S. 80, S. 139(3) and S. 139(5) — Loss return filed within time could be revised and loss carried forward.

11. 
    (2009) 119 ITD 119 (Delhi ITAT)

Escorts Mahle
Ltd. v. DCIT

A.Y. : 2001-02.
Dated : 21-3-2008

S. 80, S. 139(3)
and S. 139(5) — Loss return filed within time could be revised and loss
carried forward.

Facts :

The assessee company
filed a return of loss on 31-10-2001 which was accompanied by the unaudited
profit and loss account and balance sheet. Further the tax audit report was
also not filed. On 27-3-2003, the assessee company filed another return in
which a higher loss was claimed. The profit and loss account, balance sheet
and audit report were attached to subsequent return.

The assessing
officer took the view that since the return filed on 31-10-2001 was not
accompanied by audited accounts, the same was not a valid return. He,
therefore, considered the return filed on 27-3-2003 as the first valid return.
Further, he held that since the return filed on 27-3-2003 was filed beyond the
time limit prescribed u/s.139(1) of the Income-tax Act, 1961 (‘the Act’), the
loss declared therein could not be carried forward.

The CIT(Appeals)
held that the return filed on 27-3-2003 was revised return filed u/s.139(5) of
the Act and took the place of the original return filed on 31-10-2001. It
should, therefore, be taken to have been filed within the time limit
prescribed u/s.139(3) of the Act.

On Revenue’s appeal,
the Delhi ITAT observed that the assessing officer processed the return filed
on 31-10-2001 u/s.143(1) of the Act and also did not issue any defect notice
u/s.139(9) of the Act. Thus, the said return cannot be said to have been
considered as invalid return. This being the case, the return filed on
27-3-2003 was to be treated as valid revised return. The revised return took
the place of original return and the original return having been admittedly
filed within time allowed u/s.139(1) of the Act, the loss was to be carried
forward. The return of loss filed on 31-10-2001 was filed in accordance with
S. 139(3) of the Act and could be validly revised u/s.139(5) of the Act.