JUDGMENT
Ajit K. Sengupta, J.
1. In this reference under Section 256(2) of the Income-tax Act, 1961, for the assessment year 1982-83, the following questions have been referred to this court :
“1. Whether, on the facts and in the circumstances of the case, the loss determined in respect of the assessment for the assessment year 1982-83 should have been directed to be carried forward under Section 72(1) read with Section 80 of the Income-tax Act, 1961 ?
2. Whether, on the facts and in the circumstances of the case, the ‘SMC Bench of the Tribunal legally assumed jurisdiction in deciding the appeal when the loss returned was Rs. 7,18,840 ?”
2. Briefly stated, the facts leading to this reference are that the assessee filed a return on September 22, 1983, in respect of the assessment year 1982-83 relevant to the previous year ended on October 27, 1981. The Income-tax Officer completed the assessment on a loss of Rs. 94,060 but did not carry forward the same since the return was not filed within time. The assessee submitted that though the due date was June 30, 1982, he had filed the application for extension of time for filing the return, first up to December 31, 1982, secondly up to March 31, 1983, by Form No. 6 filed on December 30, 1982, and finally up to September 30, 1983. The Deputy Commissioner (Appeals) held that the return filed after March 31, 1983, could not be a return under Section 139(1) or 139(2) of the Act. He further held that there was violation of the provisions of Section 139(3) of the Act. He did not accept the assessee’s contention that the return was a voluntary return under Section 139(4). He, therefore, rejected the claim for carry forward of the loss.
3. On further appeal by the assessee, the Tribunal held that the claim of the assessee regarding filing of applications seeking extension of time to file the return up to March 31, 1983, was not established either before the Departmental authorities or before the Tribunal. The explanation that the assessee could not trace the receipt was not accepted. The Tribunal held that the assessee could not be said to have filed the return voluntarily. In this view of the matter, the claim of the assessee for carry forward of the loss was rejected and the appeal was dismissed.
4. Section 80 of the Act as it stood at the material time provides as follows :
“Submission of return for losses.–Notwithstanding anything contained in this Chapter, no loss which has not been determined in pursuance of a return filed under Section 139, shall be carried forward and set off under Sub-section (1) of Section 72 or Sub-section (2) of Section 73 or subsection (1) of Section 74 or Sub-section (3) of Section 74A.”
5. The said section was amended by the Taxation Laws (Amendment) Act, 1984. Section 18 of the said Amending Act provides as follows (see [1984] 149 ITR (St.) 14) :
“In Section 80 of the Income-tax Act, 1961, for the words and figures ‘under Section 139’, the words, brackets and figures ‘within the time allowed under Sub-section (1) of Section 139 or within such further time as may be allowed by the Income-tax Officer’ shall be substituted.”
6. The said amendment came into force with effect from April 1, 1985. Thereafter, a further amendment was made by the Direct Tax Laws (Amendment ) Act, 1987, which came into force with effect from April 1, 1989. It has provided that, unless the loss has been determined in pursuance of the loss return filed in accordance with the provisions of Sub-section (3) of Section 139 or within such further time that may be allowed by the Assessing Officer, no loss shall be carried forward and set off.
7. Prior to the amendment, this court in CIT v. Nagpur Steel and Alloys (P.) Ltd. [1988] 169 ITR 466 and in Presidency Medical Centre (P.) Ltd. v. CIT , held that the assessee is entitled to carry forward the loss even though the loss return was not filed within the time prescribed under Section 139(3) of the Act.
8. In this case, the Tribunal proceeded on the footing that no proof was adduced before the Assessing Officer whether any extension was obtained by the assessee before filing the return. Admittedly, the return was filed after the due date but before the assessment was completed and, as such, the return could not he ignored by the Income-tax Officer. In our view, therefore, the principles laid down in the aforesaid two decisions of this court will equally apply to the facts of this case. Following the said decision, we answer the first question in this reference in the affirmative and in favour of the assessee.
9. In view of our answer to the first question, we do not consider it necessary for examining the question of jurisdiction of the Tribunal as raised in question No. 2. We, therefore, decline to answer question No. 2 in this reference.
10. There will be no order as to costs.
Nure Alam Chowdhury, J.
11. I agree.