THE HAZARIBAGH CENTRAL CO-OPERATIVE BANK LTD,HAZARIBAG vs. ACIT, HAZARIBAG

P a g e 2 | 6 bench of Nagpur Bench in the case of Sukhharta Developers and Builders vs PCIT in & 597/Nag/2016 dated 1.8.2018, wherein also, it has been held that the return filed within the time as specified in section 139(4) has sufficient compliance for provisions of the Income Tax Act, 1961, as it was expounded that sub-section(1) and sub-section (4) of section 139 have to be read together and hence, it is the inevitable conclusion that a return made within the time specified in sub-section (4) has to be considered as having been made within the time prescribed in sub-section(1) of the Act. Ld AR further drew our attention to the decision of this Co-ordinate bench in the case of URYA REALCON PRIVATE LIMITED,SARAIDHELA, DHANBAD VS.DCIT, AAYAKAR BHAWAN, DHANBAD in ITA No.4 & 5/Ran/2024, wherein, similar findings have also been rendered. It was the further submission that in the assessment order, the Assessing Officer mentions that the evidence in respect of the claim that the amount of Rs.15,37,16,741/- had not been produced cannot be considered insofar as the audit report for earlier years and impugned assessment year were before the AO. It was the submission that the AO may be directed to grant the assessee the benefit of carry forward loss as also deleting the addition of the amount of Rs.15,37,16,741/- as the same amounts to double addition.

In reply, ld CIT DR submitted the decision of the Hon’ble Bombay High Court in the case of Trustee of Tulsidar Gopaji Charitable and Chaleshwar Temple Trust (supra) was in relation to the provisions of section 11(1) of the Act. It was P a g e 3 | 6 the submission that when the Act specifically provide for filing of the return nu/s.139(1) of the Act, filing of return u/s.139(4) cannot be deemed to be sufficient compliance of the said provision. It was the submission that the carry forward loss cannot be allowed for the impugned assessment year. In respect of disallowance of Rs.15,37,16,741/-, it was the submission that the evidence had not been produced by the assessee before the Assessing Officer although sufficient number of opportunities had been granted. It was the submission that order of the AO and that of the ld CIT(A) be upheld.

We have considered the rival submissions. A perusal of the facts in the present case clearly shows that the assessee has filed the return of income on 31.3.2017. The said return has been considered by the AO when making the assessment. It is also recognized that the Co-ordinate Bench in the case of URYA REALCON PRIVATE LIMITED,SARAIDHELA, DHANBAD VS.DCIT, AAYAKAR BHAWAN, DHANBAD(supra) has already held that a return filed u/s.139(4) of the Act was to be a return filed u/s.139(1) of the Act. We must mention here that no contrary decision has been pointed out by the Revenue in regard to the decision rendered by the Hon’ble Bombay High Court referred to (supra) as also the decisions of the Co-ordinate Benches (supra). This being so, respectfully following the judicial pronouncements, the AO is directed to treat the return filed by the assessee on 31.3.2017 as return u/s.139(1) of the Act and grant the assessee the benefit of carry forward loss.

Coming to the issue of disallowance of Rs.15,37,16,741/-, ld AR has placed before us the audited balance sheet for the year ended on 31.3.201 and 31.3.2016. It is noticed that the provision for written up has been added back by the assesseein the year ending 31,3,2015 and same has also been included in the total income. Consequently, in view of the direction of the RBI, the assessee would not be entitled the benefit. However, as the AR has mentioned that the evidences had not been produced before the AO, in the interest of justice, the issue of this disallowance of Rs.15,37,16,741/- is restored back to the file of the AO for readjudication after granting the assessee adequate opportunity of being heard.

In the result, the appeal of the assessee is partly allowed for statistical purposes.

DR, ITAT, 6. Guard file. //True Copy//