THE KOLAR & CHICKBALLAPUR DISTRICT CO-OP BANK LTD. vs. A.C.I.T., BANGALORE
What did the Tribunal hold?
The Tribunal held that the assessee is not entitled to carry forward and set off the loss of Rs. 5,23,18,280 incurred in AY 2004-05 against the income of AY 2006-07. The reasoning is based on the strict interpretation of Section 80 of the Act, which mandates that for a loss to be carried forward and set off, the return of loss must be filed in accordance with Section 139(3), meaning within the due date prescribed under Section 139(1). The Tribunal noted that the assessee's return for AY 2004-05 was admittedly filed beyond the due date. While acknowledging the genuine cause for the delay in filing the return of loss, the Tribunal stated that relief cannot be granted based on equitable considerations as 'equity and tax laws are strangers to each other'. The Tribunal also distinguished the reliance placed by the assessee on the V. S. Venkataiah case, stating it was not rendered in the context of Section 80 of the Act. Therefore, the revenue authorities were justified in denying the claim. The appeal was dismissed.
What were the facts?
The assessee, The Kolar & Chickballapur District Co-op. Bank Ltd., filed an appeal before the ITAT, Bangalore, against the order of the CIT(Appeals) dated October 7, 2013, for Assessment Year 2006-07. There was a delay of 62 days in filing the appeal, attributed to administrative issues and court cases involving the CEO, who is a deputed government officer. The Tribunal condoned the delay. The core issue concerned the benefit of carry forward and set off of a loss of Rs. 5,23,18,280 incurred in Assessment Year 2004-05. The Assessing Officer (AO) initiated proceedings under Section 154 to withdraw this set off, arguing that the return of loss for AY 2004-05 was filed beyond the due date prescribed under Section 139(1). The CIT(Appeals) confirmed the AO's order.
What were the issues?
1. Whether the assessee is entitled to carry forward and set off the loss of Rs. 5,23,18,280 incurred in Assessment Year 2004-05 against the income of Assessment Year 2006-07, considering the provisions of Section 80 and Section 139(3) of the Income Tax Act, 1961. Assessee's Contentions: - The due date for filing the return for AY 2004-05 was October 31, 2004, which was a Sunday. Therefore, the due date automatically extended to November 1, 2004. - November 1st is Karnataka Rajyotsava Day, a public holiday, and the assessee, being a co-operative bank, was closed. - The assessee was under a bonafide belief that the Income Tax Department would also be closed. - The time limit prescribed in Section 139(1) is directory, not mandatory. - Relied on the ITAT Hyderabad Bench decision in the case of V. S. Venkataiah (ITA No.984/Hyd/2011) for AY 2008-09. Revenue's Contentions: - The return of income for AY 2004-05 was filed on November 2, 2004, which is beyond the due date prescribed under Section 139(1). - As per Section 80 read with Section 139(3), a loss cannot be carried forward if the return of loss is not filed within the time allowed under Section 139(1). - The AO was justified in withdrawing the set off of loss.
Which sections of the Income-tax Act were involved?
Section 139(1),Section 139(3),Section 80,Section 72(1),Section 154,Section 119(2)(b)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRIN.V. VASUDEVAN & SHRI ABRAHAM P. GEORGE
Per N.V. Vasudevan, Judicial Member
This appeal by the assessee is against the order dated 7.10.2013 of the CIT(Appeals)-V, Bangalore relating to assessment year 2006-07.
There is a delay of about 60 days in filing the appeal by the assessee. The reasons for delay have been explained by the assessee in the application for condonation of delay. It has been stated therein that the impugned order of the CIT(A) was received by the assessee on 14.11.2013 and in normal course appeal ought to have been filed before the Tribunal on or before 13.1.2014. However, the appeal was filed only on 14.3.2014 resulting in a delay of 62 days in filing the appeal. It has been further stated that the assessee is managed and operated by Department of Co- operative Societies, Government of Karnataka, since 2004. Further to the directives of Govt., election was to be conducted to elect Governing Body of the Bank in Nov. 2014. There were controversies in the election results and cases were filed in the High Court of Karnataka by various factions challenging the election. The CEO of the assessee is the Deputy Registrar of Co-operative Societies and is a deputed Government Officer on behalf of Govt. of Karnataka. He had to appear before the High Court on almost every alternate day and could not involve in the affairs of banking activities including income tax matters. The election results were declared on 3.3.2014. Thereafter, the assessee filed an appeal on 14.3.2014. Hence the delay in filing appeal before the Tribunal.
The contents of the application for condonation of delay have been verified by Mr. Venkateshappa M., the CEO of the assessee. Considering the reasons given the application for condonation of delay, we are satisfied that the delay was occasioned due to a reasonable and sufficient cause.
Consequently, delay in filing the appeal is condoned.
The only issue that arises for consideration in this appeal is with regard to benefit of carry forward of set off of loss for A.Y. 2004-05. The facts and circumstances under which the aforesaid issue arises for consideration are as follows.
The assessee is a co-operative bank assessed in the status of AOP and carries on banking business. For the A.Y. 2005-06, the assessee filed a return of income on 31.10.2006 declaring total income of Nil. The return was processed u/s. 143(1) of the Act on 17.12.2006. Thereafter, order u/s. 143(3) of the Act was passed on 28.11.2008, accepting NIL income returned by the assessee. The computation of total income made by the AO was as follows:-
“Total Income for the year Rs.16,22,41,706 Less: Income set off against brought forward losses for the previous year Rs.16,22,41,706 --------------------- Tax thereon NIL”
The AO, thereafter, issued notice u/s. 154 of the Act dated 5.1.2010. According to the show cause notice u/s. 154, the AO was of the view that carry forward loss relating to A.Y. 2003-04 & 2004-05 ought not to have been allowed as the assessee had filed the return of income for those years beyond the time contemplated u/s. 139(1) of the Act. U/s. 139(3) of the Act, any person who has sustained a loss in the previous year under the head 'profit and gains of business or profession' and claims for the loss or any part thereof to be carried forward u/s. 72(1) & (3) or 74A(3), then he has to file a return of loss in the prescribed form within the time allowed u/s. 139(1) of the Act. In the event of failure to file the return as aforesaid, assessee cannot seek to claim carry forward of loss for set off in the subsequent assessment years, as laid down in section 80 of the Act.
The loss incurred by the assessee which is available for carry forward in the various assessment years are as follows:-
Sl. Assessment year Loss No. 1. 2002-03 NIL 2. 2003-04 Rs.3,09,29,802 3. 2004-05 Rs.5,23,18,280 4. 2005-06 Rs.10,19,12,615 Total 18,51,60,697
The return of loss for the A.Y. 2004-05 was filed by the assessee on 2.11.2004. The due date for filing the return of income u/s. 139(1) of the Act was 31.10.2004. According to the AO, since the return of income was filed by the assessee on 1.11.2004 / 2.11.2004, it is not a return filed within the due date as prescribed u/s. 139(1) of the act. Therefore, the assessee was not entitled to carry forward of loss for A.Y. 2004-05. In the order passed u/s. 143(3) of the Act, the loss of Rs.5,23,18,280 which was the loss for A.Y. 2004-05 was allowed to be set off, which was an error apparent on the face of record. The AO accordingly proposed to revise the total income of the assessee by withdrawing set off of loss to the extent of Rs.5,23,18,280.
The assessee submitted before the AO that the due date for filing return of income in terms of section 139(1) of the Act for A.Y. 2004-05 was 31.10.2004 which happened to be a Sunday. The due date therefore automatically becomes 1.11.2004. The assessee pointed out that in the State of Karnataka, 1st November of every calendar year is a public holiday on account of Karnataka Rajyotsava Day. All State Govt. office, Banks are closed on this day. Assessee being a co-operative bank was also closed on 1.11.2004 being a public holiday. Assessee was under bonafide belief that Income Tax Department is closed on 1st November. The assessee submitted that time laid down in section 139(1) is not mandatory, but directory in nature. The AO, however, did not accept the claim of assessee and he passed an order u/s. 154 of the Act withdrawing set off of loss for A.Y. 2004-05, which resulted in a taxable total income of Rs.2,93,99,289.
On appeal by the assessee, the CIT(Appeals) confirmed the order of AO.
Aggrieved by the order of CIT(A), the assessee has preferred the present appeal before the Tribunal.
We have heard the rival submissions. Provisions of section 72(1) of the Act read thus:-
“72. (1) Where for any assessment year, the net result of the computation under the head “Profits and gains of business or profession” is a loss to the assessee, not being a loss sustained in a speculation business, and such loss cannot be or is not wholly set off against income under any head of income in accordance with the provisions of section 71, so much of the loss as has not been so set off or, where he has no income under any other head, the whole loss shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and – (i) it shall be set off against the profits and gains, if any, of any business or profession carried on by him and assessable for that assessment year ; (ii) if the loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following assessment year and so on : Provided that where the whole or any part of such loss is sustained in any such business as is referred to in section 33B which is discontinued in the circumstances specified in that section, and, thereafter, at any time before the expiry of the period of three years referred to in that section, such business is re-established, reconstructed or revived by the assessee, so much of the loss as is attributable to such business shall be carried forward to the assessment year relevant to the previous year in which the business is so re-established, reconstructed or revived, and — (a) it shall be set off against the profits and gains, if any, of that business or any other business carried on by him and assessable for that assessment year; and (b) if the loss cannot be wholly so set off, the amount of loss not so set off shall, in case the business so re-established, reconstructed or revived continues to be carried on by the assessee, be carried forward to the following assessment year and so on for seven assessment years immediately succeeding.”
It is seen from the records that ld. counsel for the assessee has filed before us a copy of return of income filed by the assessee for A.Y. 2004- 05. The computation of total income and determination of total loss by the assessee is annexed to this order as ANNEXURE-I. The return so filed by the assessee is accepted by the AO and intimation u/s. 143(1) was issued which is annexed to this order as ANNEXURE-II.
Section 80 of the Act provides as follows:-
“80. Notwithstanding anything contained in this Chapter, no loss which has not been determined in pursuance of a return filed in accordance with the provisions of sub-section (3) of section 139, shall be carried forward and set off under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) or sub-section (3) of section 74 or sub-section (3) of section 74A.”
A reading of the provisions of section 72(1) of the Act would show that where a loss under the head 'profits and gains of business or profession' cannot be set off against income under any head of income u/s. 71 of the Act, so much of the loss can be carried forward and set off against the 'profits and gains of business or profession' of the following assessment year and if the loss is not set off in the following assessment year, can be carried forward to the next assessment year and so on. Section 80 starts with a non-obstante clause and it overrides all other provisions contained in Chapter VI of the act, which deal with aggregation of income and setoff of carry forward loss. A reading of the provisions of section 80 would show that for a loss to be capable of set off in a subsequent assessment year, the return for that year ought to have been filed in accordance with the provisions of section 139(3) of the Act i.e., on or before the due date for filing return of income. In fact, the said condition is also necessary for carry forward of loss for set off in future years. Admittedly, in the case of assessee, the return of income was not filed within the due date and therefore the loss for A.Y. 2004-05 has not been determined in accordance with the provisions of sub-section (3) of 139 for A.Y. 2004-05. Such a loss cannot be therefore set off against the profits of A.Y. 2006-07. In terms of section 119(2)(b) of the Act, the CBDT alone has the power to condone the lapse on the part of assessee in not filing the return of income for the A.Y. 2004-05 within the statutory time permitted u/s. 139(3) of the Act. In this case, the time for making such application to CBDT had expired by the time the AO issued show cause notice u/s. 154 to the assessee for the A.Y. 2006-07. Thus, the assessee was taken by surprise and could not exercise the remedies in law, even though it had very genuine and reasonable cause for not filing return of income for A.Y. 2004-05 on or before the due date u/s. 139(1) of the Act. It is not possible to allow relief to the assessee based on equitable considerations, since equity and tax laws are strangers to each other.
The ld. counsel for the assessee placed reliance on the decision of ITAT Hyderabad Bench in the case of ITO V. S. Venkataiah, for the A.Y. 2008-09, order dated 31.5.2012. The aforesaid decision was rendered in the context of section 80AC of the Act, which provides that deduction under Chapter VIA will not be allowed to the assessee, who has not filed return of income for the relevant assessment year on or before the due date specified u/s. 139(1) of the Act. We have perused the said decision and we find that the said decision is not rendered in the context of section 80 of the Act. In view of the specific provisions of section 80 of the Act, we are of the view that claim of the assessee cannot be entertained. We are of the view that the revenue authorities were justified in denying the claim of set off of loss for A.Y. 2004-05 in the assessment of income for A.Y. 2006-07. We accordingly dismiss the appeal by the assessee.
In the result the appeal by the Assessee is dismissed.
Pronounced in the open court on this 27th day of February, 2015.
More judgments on Section 139(1)
- Ashok Singh, Jaipur vs ACIT, Circle-2 Jaipur, JaipurITA 1540/JPR/2025[2015-16]Status: Disposed21 Oct 2026AY 2015-16
- Haresh Sharma, Ahmedabad vs ITO, Ward 5(3)(1), AhmedabadITA 2125/AHD/2026[2019-2020]Status: Disposed21 Oct 2026AY 2019-2020
- Nitinbhai Nanalal Badani, Rajkot vs CIT (Appeals), National Faceless Appeal…ITA 658/RJT/2025[2020-21]Status: Disposed19 Oct 2026AY 2020-21
- Nitinbhai Nanalal Badani, Rajkot vs CIT(Appeals), National Faceless Appeal…ITA 485/RJT/2025[2022-23]Status: Disposed19 Oct 2026AY 2022-23
- Mata Lachmi Rotary Charitable Society… vs Income Tax Officer, Exemption Ward - 1…ITA 310/RJT/2025[2022-23]Status: Disposed16 Oct 2026AY 2022-23
Recent GST High Court judgments
Search GST case law →- Dwaraka Jewellers, Bhubaneswar vs. Superintendent, CGST And Central Excise, BhubaneswarOrissa · 31 Oct 2026
- M/S N D Waddar And Co vs. Sri Gaurav GuptaKarnataka · 30 Oct 2026
- Kanwar Enterprises Private Limited vs. The Joint Commissioner - State TaxTelangana · 30 Oct 2026
- M/S. Bangi Mines And Minerals vs. The State Of TelanganaTelangana · 30 Oct 2026
- M/S. Arka Business Solutions vs. Principal Commissioner Of CustomsTelangana · 30 Oct 2026