Ita/181/2010 Of The Commissioner Of Income Tax v. M/S. Alappatt Consumer Electronics

Kss 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 ------------------------ ITA NO. 741/COCH/2008 OF INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH DATED 09-11-2009 .... APPELLANT/RESPONDENT: ------------------------------------------- THE COMMISSIONER OF INCOME TAX, COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX RESPONDENT(S)/APPELLANT: ------------------------------------------------ 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 DAY DELIVERED THE FOLLOWING: 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 MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * * I.T.Appeal No.181 of 2010 ---------------------------------------- Dated this the 2[nd] day of January 2014 J U D G M E N T SHAFFIQUE,J This appeal is filed by the Revenue against the order ofthe 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 electronicgoods and home appliances. Return is filed on 01/11/2004and being defective, the Assessing Officer called upon theassessee to cure the defect. Instead of curing the defect hefiled revised return under Section 139(5) of the Income TaxAct within the time specified after curing the defect. Theassessment was completed on 26/12/2006 determining aloss of Rs.65,75,858/- rejecting the claim of the assessee forcarry forward of the loss. This was declined by the I.T.A.No.181/2010 Assessing Officer on the ground that since the assessee didnot file a return under Section 139(3), Section 80 of the Actprecludes the assessee from claiming the benefit of carryforward. On appeal by the assessee the same came to beconfirmed by the CIT (Appeals). On further appeal beforethe Tribunal, the appeal came to be allowed on a findingthat the revised return filed by the assessee under Section139(5) has to be treated as a return filed under Section139(3) of the Act. 3.The only question to be considered is whether onfiling a revised return under Section 139(5) of the Act, theassessee is entitled for the benefit of carry forward of thelosses. It is not in dispute that the assessee had filed thereturn on 01/11/2004, as 31/10/2004, the last date specifiedunder the Statute fell on a holiday. It is also not in disputethat certain defects were noticed and the Assessing Officerhad issued a memo on 17/01/2005 calling upon the assesseeto cure the defects. However, instead of curing the defects, I.T.A.No.181/2010 3.The only question to be considered is whether onfiling a revised return under Section 139(5) of the Act, theassessee is entitled for the benefit of carry forward of thelosses. It is not in dispute that the assessee had filed thereturn on 01/11/2004, as 31/10/2004, the last date specifiedunder the Statute fell on a holiday. It is also not in disputethat certain defects were noticed and the Assessing Officerhad issued a memo on 17/01/2005 calling upon the assesseeto cure the defects. However, instead of curing the defects, I.T.A.No.181/2010 the assessee filed revised return under Section 139(5) of theAct. Apparently, there was no substantial change in the tworeturns filed by the assessee. The only defect noticed wasto submit the auditors report along with the return. It wassubmitted that the revised return was filed within the timeprescribed by the Assessing Officer for curing the defects. Ifa hyper technical approach is taken in the matter, theassessee could not have filed a revised return as there wasno situation warranting a revised return. But in the revisedreturn filed by the assessee under Section 139(5) of the Act,there is no substantial change in the return filed earlierother than produced along with it the necessary audit report.4.Since the Tribunal had taken a view that thedefects were cured by the assessee within the timepermitted by the Assessing Officer by filing a revised return,we do not think that a different view could be taken in thismatter. If the contentions urged on behalf of the Revenue isaccepted, the assessee will not be in a position to carry I.T.A.No.181/2010 forward the loss as claimed by them in the return originallyfiled. Having regard to the aforesaid factual situation, we donot think that any interference is required to the orderpassed by the Tribunal and accordingly the appeal isdismissed. (sd/-) (MANJULA CHELLUR, CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr