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The Tax Publishers2023 TaxPub(DT) 153 (Bang-Trib) IN THE ITAT B BENCH : BANGALORE N. V. VASUDEVAN, V.P. & CHANDRA POOJARI, A. Ajit Vasant Pal, v. DCIT, M.P No.143/Bang/2022 (in ITA No.741/Bang/2022) A.Y. 2017-18 3 January 2023 Assessee by: H. Anil Kumar, CA Revenue by: Anand, Addl. CIT(DR)(ITAT), Bengaluru ORDER *N.V. Vasudevan, V.P.* This is an Miscellaneous Petition (MP) filed by the assessee under section 254(2) of the Income Tax Act, 1961 (hereinafter called the Act), praying for alleged apparent error in the order of the Tribunal dated 28-10-2022 passed by this Tribunal. 2. By the aforesaid order, the Tribunal held that the CPC while processing the return under section 143(1)(a) of the Act did not have powers to deny carry forward of loss in para-11 and 12 of its order dated 28-10-2022. The Tribunal thereafter in paragraph 13 of the following the decision of the Mumbai Bench of the ITAT in the case of Ramesh R Shah v. ACIT (2011) 12 taxmann.com 505 (Mumbai) remanded the case to the assessing officer for fresh consideration observing as follows: 12. Apart from the above, we find that the Mumbai Bench of the ITAT after considering the decision of the Vishakapatnam Bench in the case of M. Narendranath Indl (supra) held as follows:-- 9. In the background of these facts, we have to examine whether the assessee is entitled to claim of the carry forward of the long-term capital loss as per the revised return filed on 28-3-2006. We have already stated that the original return was filed by the assessee is well within the time and there is no controversy on this aspect. Subsequently, the assessee filed the revised return and claimed that same is filed under sub-section (5) to section 139. As per the provisions of section 139(5) if the assessee has furnished the return under section 139(1) and subsequently discloses any wrong statement therein or which in his opinion is wrong then he can revise the return at any time before the expiry of the one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. So far as the time limit prescribed under sub-section (5) to section 139 is concerned, the Assessing Officer is not disputing the same. Only issue is in respect of interpretation of sub-section (3) of section 80. As per provisions of sub-section (3) of section 139, if the assessee incurred loss in any previous year under the head 'Profit and gains of business or profession' or 'Capital gain' and claims that the said loss or part thereof should be carried forward under section 72, 73 or 74 etc. then he should file the said return within a time stipulated under section 139(1) of the Act. As per section 80, to claim the carry forward of the loss, there are two conditions:-- SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2023 TaxPub(DT) 153 (Bang-Trib)

IN THE ITAT B BENCH : BANGALORE

N. V. VASUDEVAN, V.P. & CHANDRA POOJARI, A.

Ajit Vasant Pal, v. DCIT,

M.P No.143/Bang/2022 (in ITA No.741/Bang/2022)

A.Y. 2017-18

3 January 2023

Assessee by: H. Anil Kumar, CA

Revenue by: Anand, Addl. CIT(DR)(ITAT), Bengaluru

ORDER

N.V. Vasudevan, V.P.

This is an Miscellaneous Petition (MP) filed by the assessee under section 254(2) of the Income Tax Act, 1961 (hereinafter called the Act), praying for alleged apparent error in the order of the Tribunal dated 28-10-2022 passed by this Tribunal.

2. By the aforesaid order, the Tribunal held that the CPC while processing the return under section 143(1)(a) of the Act did not have powers to deny carry forward of loss in para-11 and 12 of its order dated 28-10-2022. The Tribunal thereafter in paragraph 13 of the following the decision of the Mumbai Bench of the ITAT in the case of Ramesh R Shah v. ACIT (2011) 12 taxmann.com 505 (Mumbai) remanded the case to the assessing officer for fresh consideration observing as follows:

12. Apart from the above, we find that the Mumbai Bench of the ITAT after considering the decision of the Vishakapatnam Bench in the case of M. Narendranath Indl (supra) held as follows:--

9. In the background of these facts, we have to examine whether the assessee is entitled to claim of the carry forward of the long-term capital loss as per the revised return filed on 28-3-2006. We have already stated that the original return was filed by the assessee is well within the time and there is no controversy on this aspect. Subsequently, the assessee filed the revised return and claimed that same is filed under sub-section (5) to section 139. As per the provisions of section 139(5) if the assessee has furnished the return under section 139(1) and subsequently discloses any wrong statement therein or which in his opinion is wrong then he can revise the return at any time before the expiry of the one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. So far as the time limit prescribed under sub-section (5) to section 139 is concerned, the Assessing Officer is not disputing the same. Only issue is in respect of interpretation of sub-section (3) of section 80. As per provisions of sub-section (3) of section 139, if the assessee incurred loss in any previous year under the head 'Profit and gains of business or profession' or 'Capital gain' and claims that the said loss or part thereof should be carried forward under section 72, 73 or 74 etc. then he should file the said return within a time stipulated under section 139(1) of the Act. As per section 80, to claim the carry forward of the loss, there are two conditions:--