ACIT/DCIT, CIRCLE-6(1), KOLKATA,KOLKATA vs. M/S LARK WIRES & INFORTECH LTD., KOLKATA

This appeal by the Revenue arises out of the order of the Learned Commissioner of Income Tax(Appeals)-8, Kolkata [in short the ld CIT(A)] in Appeal No. 8/10253/2011- 12 dated 03.11.2016 against the order passed by the DCIT, Circle-6, Kolkata [ in short the ld AO] under section 143(3)/115WE3 of the Income Tax Act, 1961 (in short “the Act”) dated 27.12.2011 for the Assessment Year 2009-10.

The only issue to be decided in this appeal is as to whether the assessee is eligible to carry forward the loss of Rs. 7,45,92,676/-, in the facts and circumstances of the case.

The brief facts of this appeal is that the assessee is a public limited company engaged in the business of manufacturing of enameled copper wire and had filed its return of

The assessee preferred an appeal before the ld. CIT(A) seeking for the benefit of carry forward of assessed business loss of Rs. 7,45,92,676/- for the Asst Year 2009-10 to subsequent years. It was pleaded before the ld. CIT(A) that the assessee prepared and uploaded the return for filing in late hours on 30.09.2009, and that due to technical difficulties in the server of the Income-tax Department, the date of filing of the data uploaded has come out in acknowledgment of return as filed on 01.10.2009. Accordingly , it was pleaded that there was no fault on the part of the assessee that return was not filed in due time. The ld. CIT(A) accepted this explanation and held that in initial years of e-filing system and processes of the department, these type of technical difficulties are bound to happen which would in turn contribute to delay in getting the return uploaded electronically and accordingly, he condoned the delay as attributable due to technical issues beyond the control of the assessee. Consequentially, 2

We have heard rival submissions. The fact stated hereinabove are not reiterated for the sake of brevity. The language of the law is very clear that the assessee in order to get the benefit of carry forward of business losses has to file the return of income within the due date prescribed u/s 139(1) of the Act. The provisions of section 139(3) read with section 80 of the Act make it very clear that if return is not filed within the due date u/s 139(1) of the Act, then the assessee would be deprived from getting the benefit of carry forward of business losses. Though an oral claim was made by the ld. AR before us that the assessee company had started uploading the return in the late hours on 30.09.2009 and because of technical glitches on the server of the Income-tax Department, the same could not be uploaded before 12 A.M. on 30.9.2009 and by the time it got uploaded, it was past 12 A.M. on 1.10.2009 and date of uploading the return electronically was reflected in the Income-tax return acknowledgment as 01.10.2009. Though it could be appreciated that the assessee should not be made to suffer by depriving the benefit of carry forward of losses for the reason beyond its control, the fact as to whether at all there were any technical glitches on the server of income-tax department on 30.09.2009 was not proved by the assessee before us through cogent evidence. We find that e-filing website of the income-tax Department at present provides the time at which the return was uploaded by the assessee and the same is also reflected in the ITR acknowledgment. However, the time at which the return was uploaded for the assessment year 2009-10 is not reflected in the ITR acknowledgement filed before us. In these circumstances, in the interest of justice and fair play and in order to ascertain the facts of the assessee, we deem it fit and appropriate to remand this appeal to the file of ld. AO with a direction to ascertain the time of uploading of the income tax return electronically for the assessment year 2009-10 by the assessee from 3

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