Addl. CIT v. Nortel Networks India (P) Ltd. [ITA No. 504/Del/2017, dt. 23-7-2020] : 2020 TaxPub(DT) 2952 (Del.-Trib.)

Belated return -- Carry forward of unabsorbed depreciation under section 32(2) vs. carry forward of business loss interplay

Facts:

Assessee filed a belated return in which there was business loss and unabsorbed depreciation. The unabsorbed depreciation was claimed to be carried forward for adjustment in future years but since return being belated the right to carry forward business loss was lost as per operation of section 72. This was confirmed by the assessing officer and also upheld by the Commissioner (Appeals) (when assessee went in appeal on many other points) by referring to section 72 and section 80. Department interpreting the Commissioner (Appeals)'s order to be cryptic went in appeal to ITAT -

Held dismissing the departmental appeal that the return if filed late will disable the assessee to carry forward only business losses but the same disability cannot be read into section 32(2) which is a code in itself to carry forward which filing of return within the due date is not warranted. The order of Commissioner (Appeals) does not required any interference.

Editorial Note: The distinction in carry forward of business losses being available only if return is filed within due date under section 139(1) read with section 72 and the operation of section 32(2) being outside of section 72 has been reiterated in this decision. As to what prompted the department in go in for the futile appeal in this case is not comprehensible.