Carry Forward of Loss
This query is : Resolved
13 October 2009
Is there any remedy if short term capital loss is not filed within due date?
13 October 2009
Dear Ganesh,
Sorry, No remedy
Thanx
Sorry, No remedy
Thanx
13 October 2009
I agree with expert.
But can't he apply for condonation of delay. I would request expert JUzer to comment.
But can't he apply for condonation of delay. I would request expert JUzer to comment.
13 October 2009
Thank you sir..
Thats what i wanted to know. The procedure for condonation of delay..
And is there any time limit for condonation of delay?
Thats what i wanted to know. The procedure for condonation of delay..
And is there any time limit for condonation of delay?
13 October 2009
773. Condonation of delay in filing refund claim and claim of carry forward of losses under section 119(2)(b)
1. The Boards order under section 119(2)(b), dated 12th October, 1993 and Circular No. 670 dated 26th October, 1993 [F. No. 225/208/93/IT (A-II)] lay down procedure for condonation of delay in belated claims of refunds. These provide that CIT has power to condone delay in case of genuine hardship of refund claims up to Rs. 10,000 and CCIT up to Rs. 1,00,000. The power of condonation in cases of refund claims of more than Rs. 1,00,000 as well as power of rejection in all cases lie with the Board.
2. Under the existing circular, apart from the conditions prescribed under earlier orders dated 5-2-1988 and 17-8-1988 issued from [F. No. 225/201/87/IT (A-II)], the following additional conditions are required to be fulfilled before the condonation of delay in filing belated refund claims can be considered :
(i) the refund arises as a result of excess tax deducted at source, collected at source and payments of advance tax under the provisions of Chapters XVII-B, XVII-BB and XVII-C, respectively and the amount of refund does not exceed Rs. 1 lakh for any assessment year;
(ii) the returned income is not a loss where the assessee claims the benefit of carry forward of the loss;
(iii) the refund claimed is not supplementary in nature, i.e., claim for additional amount of refund is made after the completion of the original assessment for the same assessment year; and
(iv) the income of the assessee is not assessable in the hands of any other person under any of the provisions of the Act.
3. Subsequently the Karnataka High Court in the case of Associated Electro Ceramics v. Chairman, Central Board of Direct Taxes [1993] 201 ITR 501 held that the Board have power to condone the delay in cases having claim of carry forward of losses. The department did not file special leave petition against this order. Subsequently the matter was taken up with the Ministry of Law who also agreed with the view that the Board have power to condone the delay in filing the return under section 119(2)(b) of the Income-tax Act, 1961, in a case having claim of carry forward of losses.
4. Hence, conditions at Serial No. (ii) of Order under section 119(2)(b) dated 12th October, 1993 stipulating that the delay cannot be condoned in cases where returned income is a loss and assessee claims benefit of carry forward of the loss, is not legally tenable.
5. In view of the Board, hereby, clarify that delay in making refund claim as well as claim of carry forward of losses, both can be condoned in cases where returned income is a loss, provided other conditions are satisfied. The monetary limits prescribed for condonation of delay in making refund claims, by different IT authorities, will apply to condonation of delay in cases of claim of carry forward of losses as well.
Circular : No. 8/2001, dated 16-5-2001.
1. The Boards order under section 119(2)(b), dated 12th October, 1993 and Circular No. 670 dated 26th October, 1993 [F. No. 225/208/93/IT (A-II)] lay down procedure for condonation of delay in belated claims of refunds. These provide that CIT has power to condone delay in case of genuine hardship of refund claims up to Rs. 10,000 and CCIT up to Rs. 1,00,000. The power of condonation in cases of refund claims of more than Rs. 1,00,000 as well as power of rejection in all cases lie with the Board.
2. Under the existing circular, apart from the conditions prescribed under earlier orders dated 5-2-1988 and 17-8-1988 issued from [F. No. 225/201/87/IT (A-II)], the following additional conditions are required to be fulfilled before the condonation of delay in filing belated refund claims can be considered :
(i) the refund arises as a result of excess tax deducted at source, collected at source and payments of advance tax under the provisions of Chapters XVII-B, XVII-BB and XVII-C, respectively and the amount of refund does not exceed Rs. 1 lakh for any assessment year;
(ii) the returned income is not a loss where the assessee claims the benefit of carry forward of the loss;
(iii) the refund claimed is not supplementary in nature, i.e., claim for additional amount of refund is made after the completion of the original assessment for the same assessment year; and
(iv) the income of the assessee is not assessable in the hands of any other person under any of the provisions of the Act.
3. Subsequently the Karnataka High Court in the case of Associated Electro Ceramics v. Chairman, Central Board of Direct Taxes [1993] 201 ITR 501 held that the Board have power to condone the delay in cases having claim of carry forward of losses. The department did not file special leave petition against this order. Subsequently the matter was taken up with the Ministry of Law who also agreed with the view that the Board have power to condone the delay in filing the return under section 119(2)(b) of the Income-tax Act, 1961, in a case having claim of carry forward of losses.
4. Hence, conditions at Serial No. (ii) of Order under section 119(2)(b) dated 12th October, 1993 stipulating that the delay cannot be condoned in cases where returned income is a loss and assessee claims benefit of carry forward of the loss, is not legally tenable.
5. In view of the Board, hereby, clarify that delay in making refund claim as well as claim of carry forward of losses, both can be condoned in cases where returned income is a loss, provided other conditions are satisfied. The monetary limits prescribed for condonation of delay in making refund claims, by different IT authorities, will apply to condonation of delay in cases of claim of carry forward of losses as well.
Circular : No. 8/2001, dated 16-5-2001.
Message likes :
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13 October 2009
Thanks a lot sir..
13 October 2009
Dear Sanjay Sir,
Thanx for your response, I am not expert like you, even I am just undergoing my 2nd year of articleship and gonna appear for Final in May 10.
As per your requirement my comment is as under;
I think (m nt sure) condonation of delay for claim of carryforward of loss would create big problem to ITD which can be understand from following;
1) Condonation of Delay(COD) for claiming carry forward of loss can be file after expiry of statutory time i.e. 1 year after the last date of A.Y.
2) Now say Mr. Ganesh is talking about A.Y. 2009-10 then he needs to wait till 1st April 2011 and then apply for COD.
3) Also, say if Mr. Ganesh is waiting till said date and then go for condonation, do you think he will qualify on merit?
4) If say above works and he gets condone, isn't it obvious that there shall be no relevance of deadline/time limit for filing ROI for claiming c/f of loss.
Sir, plz advice me/Mr. Ganesh, hw he shall proceed.
Sir, please share your experiance/ expertise, whether you have help any assesee to obtain condonation for the purpose.
Your advice is appriciated.
Thank you very much.
Juzer
Thanx for your response, I am not expert like you, even I am just undergoing my 2nd year of articleship and gonna appear for Final in May 10.
As per your requirement my comment is as under;
I think (m nt sure) condonation of delay for claim of carryforward of loss would create big problem to ITD which can be understand from following;
1) Condonation of Delay(COD) for claiming carry forward of loss can be file after expiry of statutory time i.e. 1 year after the last date of A.Y.
2) Now say Mr. Ganesh is talking about A.Y. 2009-10 then he needs to wait till 1st April 2011 and then apply for COD.
3) Also, say if Mr. Ganesh is waiting till said date and then go for condonation, do you think he will qualify on merit?
4) If say above works and he gets condone, isn't it obvious that there shall be no relevance of deadline/time limit for filing ROI for claiming c/f of loss.
Sir, plz advice me/Mr. Ganesh, hw he shall proceed.
Sir, please share your experiance/ expertise, whether you have help any assesee to obtain condonation for the purpose.
Your advice is appriciated.
Thank you very much.
Juzer
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