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The Tax Publishers Carry forward and set off loss out of a revised return under Section 139(5) vs. loss return under Section 139(3) read with Section 80--Misc. petition seeking specific orders *Facts:* Assessee had filed a positive return of income for the AY 2017-18 within due date under Section 139(1). Subsequently he revised it under Section 139(5) reporting a loss and claiming carry forward and set off losses. It was the case of the revenue that to claim carry forward and set off of losses as per Section 80 the return ought to have been filed under Section 139(1) and not under Section 139(5). Assessee's plea was both Section 139(1) and 139(3) if filed within due date and revised under Section 139(5) will entail carry forward and set off losses. Section 139(1) envisages positive return and then a revision under Section 139(5) can happen, while Section 139(3) envisages a loss return and then a revised return under Section 139(5) may also happen. Section 80 will need to be read necessarily to accommodate both type of returns being filed and then revised if warranted thereafter under Section 139(5). The revised return will partake the character of the original return under both circumstances. This was decided in favour of the assessee in their original appeal by the ITAT. Clamouring for a more specific instructive order the assessee made a miscellaneous petition before ITAT. Held against the assessee that the original order does not need any revision and the scope of revision does not accommodate a miscellaneous petition request thus by the assessee. *Ed. Note:* the discussion on interplay of Section 139(1), 139(3), 139(5) and Section 80 is why this misc. petition needs to be taken note of as these are fine print readings. *Case:* Ajit Vasant Pal v. DCIT 2023 TaxPub(DT) 153 (Bang-Trib)

The Tax Publishers

Carry forward and set off loss out of a revised return under Section 139(5) vs. loss return under Section 139(3) read with Section 80--Misc. petition seeking specific orders

Facts:

Assessee had filed a positive return of income for the AY 2017-18 within due date under Section 139(1). Subsequently he revised it under Section 139(5) reporting a loss and claiming carry forward and set off losses. It was the case of the revenue that to claim carry forward and set off of losses as per Section 80 the return ought to have been filed under Section 139(1) and not under Section 139(5). Assessee's plea was both Section 139(1) and 139(3) if filed within due date and revised under Section 139(5) will entail carry forward and set off losses. Section 139(1) envisages positive return and then a revision under Section 139(5) can happen, while Section 139(3) envisages a loss return and then a revised return under Section 139(5) may also happen. Section 80 will need to be read necessarily to accommodate both type of returns being filed and then revised if warranted thereafter under Section 139(5). The revised return will partake the character of the original return under both circumstances. This was decided in favour of the assessee in their original appeal by the ITAT. Clamouring for a more specific instructive order the assessee made a miscellaneous petition before ITAT.

Held against the assessee that the original order does not need any revision and the scope of revision does not accommodate a miscellaneous petition request thus by the assessee.

Ed. Note: the discussion on interplay of Section 139(1), 139(3), 139(5) and Section 80 is why this misc. petition needs to be taken note of as these are fine print readings.

Case: Ajit Vasant Pal v. DCIT 2023 TaxPub(DT) 153 (Bang-Trib)