Kerala High Court
The Commissioner Of Income Tax vs M/S.Alappat Consumer Electronics ... on 9 November, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 2ND DAY OF JANUARY 2014/12TH POUSHA, 1935
ITA.No. 181 of 2010
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ITA NO. 741/COCH/2008 OF INCOME TAX APPELLATE TRIBUNAL,
COCHIN BENCH DATED 09-11-2009
....
APPELLANT/RESPONDENT:
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THE COMMISSIONER OF INCOME TAX,
COCHIN.
BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX
RESPONDENT(S)/APPELLANT:
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M/S.ALAPPAT CONSUMER ELECTRONICS INDIA (P) LTD.,
SADANAM ROAD, ERNAKULAM.
BY ADV. SRI.ANIL D. NAIR
THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD
ON 02-01-2014, THE COURT ON THE SAME DAYDELIVERED
THE FOLLOWING:
Kss
ITA NO.181/2010
APPENDIX
APPELLANT'S ANNEXURES:
ANNEX.A: COPY OF ASSESSMENT ORDER 143(3) DTD. 26/12/2006 FOR
THE ASSESSMENT YEAR 2004-05.
ANNEX.B: COPY OF THE ORDER DTD. 28/03/2008 OF THE COMMISSIONER
OF INCOME TAX (APPEALS).
ANNEX.C: COPY OF THE ORDER DTD. 09/11/2009 OF THE INCOME TAX
APPELLATE TRIBUNAL, COCHIN BENCH ITA NO.741/COCH/2008.
RESPONDENT'S ANNEXURES: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
MANJULA CHELLUR, CJ
& A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
I.T.Appeal No.181 of 2010
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Dated this the 2nd day of January 2014
J U D G M E N T
SHAFFIQUE,J This appeal is filed by the Revenue against the order of the Income Tax Appellate Tribunal, Cochin Bench in I.T.A. No.741/Coch/08 with reference to assessment year 2004-05.
2. The assessee is a dealer in consumer electronic goods and home appliances. Return is filed on 01/11/2004 and being defective, the Assessing Officer called upon the assessee to cure the defect. Instead of curing the defect he filed revised return under Section 139(5) of the Income Tax Act within the time specified after curing the defect. The assessment was completed on 26/12/2006 determining a loss of Rs.65,75,858/- rejecting the claim of the assessee for carry forward of the loss. This was declined by the I.T.A.No.181/2010 2 Assessing Officer on the ground that since the assessee did not file a return under Section 139(3), Section 80 of the Act precludes the assessee from claiming the benefit of carry forward. On appeal by the assessee the same came to be confirmed by the CIT (Appeals). On further appeal before the Tribunal, the appeal came to be allowed on a finding that the revised return filed by the assessee under Section 139(5) has to be treated as a return filed under Section 139(3) of the Act.
3. The only question to be considered is whether on filing a revised return under Section 139(5) of the Act, the assessee is entitled for the benefit of carry forward of the losses. It is not in dispute that the assessee had filed the return on 01/11/2004, as 31/10/2004, the last date specified under the Statute fell on a holiday. It is also not in dispute that certain defects were noticed and the Assessing Officer had issued a memo on 17/01/2005 calling upon the assessee to cure the defects. However, instead of curing the defects, I.T.A.No.181/2010 3 the assessee filed revised return under Section 139(5) of the Act. Apparently, there was no substantial change in the two returns filed by the assessee. The only defect noticed was to submit the auditors report along with the return. It was submitted that the revised return was filed within the time prescribed by the Assessing Officer for curing the defects. If a hyper technical approach is taken in the matter, the assessee could not have filed a revised return as there was no situation warranting a revised return. But in the revised return filed by the assessee under Section 139(5) of the Act, there is no substantial change in the return filed earlier other than produced along with it the necessary audit report.
4. Since the Tribunal had taken a view that the defects were cured by the assessee within the time permitted by the Assessing Officer by filing a revised return, we do not think that a different view could be taken in this matter. If the contentions urged on behalf of the Revenue is accepted, the assessee will not be in a position to carry I.T.A.No.181/2010 4 forward the loss as claimed by them in the return originally filed.
Having regard to the aforesaid factual situation, we do not think that any interference is required to the order passed by the Tribunal and accordingly the appeal is dismissed.
(sd/-) (MANJULA CHELLUR, CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr I.T.A.No.181/2010 5 I.T.A.No.181/2010 6