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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI RAVISH SOOD & SHRI ARUN KHODPIA
PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the CIT(Appeals)-1, Raipur dated 26.09.2019, which in turn arises from the intimation issued by the A.O under Sec. 143(1) of the Income-tax Act, 1961 (in short ‘the Act’) dated 17.09.2016 for assessment year 2016-
Before us the assessee has assailed the impugned intimation on the following grounds of appeal:
“1. In the facts and circumstances and the provision of law the delay of one day in filing the return of income for the A.Y.2016-17 on 06.08.2026 may be condoned and the short-term capital loss may be carried forward.
The appellant prays that he may be allowed to raise any other ground of appeal at the time of hearing.”
Succinctly stated, though the “due date” under sub-section (1) of Sec. 139 for filing the return of income for the assessment year A.Y.2016-17 was extended by the CBDT vide its order u/s.119 F. No.225/195 /2016/ITA-II, dated 29th July, 2016
3 Tarun Kumar HUF Vs. ITO-3(3), Raipur from 31.07.2016 to 05.08.2016, however, the assessee had filed its return of income for the said year only as on 06.08.2016. Accordingly, the A.O vide his intimation passed u/s.143(1) of the Act dated 17.09.2016 treated the assessee’s return of income as a belated return and declined its claim for carry forward of the current years loss of Rs.1,08,756/-.
Aggrieved the assessee carried the matter in appeal before the CIT(Appeals) but without any success.
The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. As the assessee appellant had placed before us its written submission vide a letter dated 22.07.2022, therefore, we dispose off the appeal after considering the same in the backdrop of the contentions advanced by the Ld. Departmental Representative (for short ‘DR’) and perusing the orders of the lower authorities.
On a perusal of the order of the CIT(Appeals), it transpires that the assessee had in the course of the appellate proceedings
4 Tarun Kumar HUF Vs. ITO-3(3), Raipur before him had drawn support from Section 4 of the Limitation Act, 1963 in order to impress upon him that though the “due date” of filing of the return of income was extended by te CBDT vide its order u/s.119 F. No.225/195/2016/ITA-II, dated 29th July, 2016 to 05.08.2016, however as the said extended date was a public holiday, therefore, the same was to be deemed to have been extended to the next working day i.e. 06.08.2016. As such the assessee had tried to persuade the CIT(Appeals) to return a finding that as the filing of its return of income on 06.08.2016 was within stipulated time period, i.e as extended under section 4 of the Limitation Act, 1963, therefore, the A.O had erred in law and in the facts of the case in declining its claim for carry forward of current year Short term Capital Loss (STCL) of (-) Rs.1,08,756/- by treating the return on income in question as a belated return.
After having given a thoughtful consideration to the aforesaid contention of the Ld. AR which at the first blush appeared to be convincing, we are afraid that the same does not 5 Tarun Kumar HUF Vs. ITO-3(3), Raipur find favour with us. On a careful perusal of Section 4 of the Limitation Act, 1963, it transpires that the same contemplates, that where the prescribed period for filing any suit, appeal or application expires on a day when the court is closed, then, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. However, unlike the circumstances envisaged in Section 4 of the Limitation Act, 1963, as the case of the assessee before us does not involve any institution of suit, appeal or application before the Court, but centers around the e-filing of return of its return of income within the “due date” as was extended by the CBDT to 05.08.2016 vide its order passed u/s.119 F. No.225/195/2016 /ITA-II, dated 29th July, 2016, therefore, the reliance placed by the assessee on Section 4 of the Limitation Act, 1963 would not by any means assist its present case.
Admittedly, it is a matter of fact borne from record that the assessee had failed to file its return of income by the “due date” as was extended by the CBDT vide its order u/s.119 F.
6 Tarun Kumar HUF Vs. ITO-3(3), Raipur No.225/195/2016/ITA-II, dated 29thJuly, 2016 i.e upto 05.08.2016. Our indulgence has been sought by the assessee in the present appeal for condoning the delay of one day that was involved in filing of its aforesaid return of income for the year under consideration i.e. A.Y.2016-17, and as a consequence thereof allow the carry forward of the returned STCL of Rs.1,08,756/- for the year under consideration.
Undeniably for the reasons discussed by us hereinabove, the return of income filed by the assessee for the year under consideration i.e AY 2016-17 is beyond the stipulated time period contemplated under sub-section (1) of Section 139 of the Act (as extended by the CBDT). In absence of any enabling provision vesting with us the requisite juri iction to condone the delay in filing of a return of income by an assessee the request of the assessee seeking condonation of the delay of one day involved in filing of its return of income for the year under consideration i.e AY 2016-17 is thus declined. We, thus, are of the considered view that as the assessee had failed to file its 7 Tarun Kumar HUF Vs. ITO-3(3), Raipur return of income for the year under consideration i.e AY 2016- 17 within the stipulated time period provided in section 139(1) of the Act (as extended by the CBDT), therefore, as per the mandate of Section 80 r.w.s. (3) to section 139, its declining of the claim for carry forward of short-term capital loss the A.O, had thereafter rightly been sustained by the CIT(Appeals).
On the basis of our aforesaid observations, we, thus, finding no infirmity in the view taken by the CIT(Appeals), uphold his order.
In the result, appeal filed by the assessee is dismissed in terms of our aforesaid observations. Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board. ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायपुर/ RAIPUR ; "दनांक / Dated : 23rd September, 2022 SB
8 Tarun Kumar HUF Vs. ITO-3(3), Raipur आदेश क" ""त"ल"प अ"े"षत / Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant.
""यथ" / The Respondent.
The CIT(Appeals)-1, Raipur (C.G)
The Pr. CIT-1, Raipur (C.G)
"वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण,रायपुरब"च, रायपुर / DR, ITAT, Raipur Bench, Raipur. गाड" फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, //// "नजी स"चव / Private Secretary आयकर अपील"य अ"धकरण, रायपुर / ITAT, Raipur.