During the  year the petitioner has suffered a business loss of Rs.57 crores. This business loss, the petitioner is entitled to set off against the income of Rs.77 crores which was subject to tax under the head “capital gain” in terms of Section 71 of the Act. Thus, leaving a balance of Rs.20 crores (approx) as taxable income. It is this balance of Rs. 20 crores, the petitioner was entitled to set off from the carry forward business loss of Rs. 166 crores (approx)  in terms of Section 72 of the Act. It is the case of the petitioner that such setting off of carry forward business loss of the earlier years in respect of amounts taxed under the head “short term capital gains” has been allowed by the Tribunal in numerous cases. However, when the petitioner attempted to file its return of income in the prescribed electronic form, the petitioner was able to reflect the set off in terms of Section 71 of the Act i.e. setting of the losses against gains of the subject assessment year. However, the petitioner was not able to reflect in the prescribed return of income in electronic form, the set off available in terms of Section 72 of the Act i.e. setting off of current years business loss against the carry forward loss from the earlier years. This for the reason that the return which is filed electronically requires certain columns to be filled in by the petitioner and the other columns are self populated. The petitioner is unable to change the figures and make a claim for set off under Section 72 of the Act in the present facts. This results in excess income being declared, resulting in an obligation to pay more tax on income which in term of section 72 of the Act is allowed to be set off against carried forward losses of earlier years. It is in these circumstances, the petitioner has prayed that he be allowed to file his return of income in appropriate form for the subject assessment year in paper form and the same be taken up for assessment in accordance with the Act. During the subject assessment year, the petitioner has otherwise suffered a business loss of Rs.57 crores (approx). This business loss, the petitioner is entitled to set off against the income of Rs.77 crores which was subject to tax under the head “capital gain” in terms of Section 71 of the Act. Thus, leaving a balance of Rs.20 crores (approx) as taxable income. It is this balance of Rs. 20 crores, the petitioner was entitled to set off from the carry forward business loss of Rs. 166 crores (approx)(see Exhibit-B to petition) in terms of Section 72 of the Act. It is the case of the petitioner that such setting off of carry forward business loss of the earlier years in respect of amounts taxed under the head “short term capital gains” has been allowed by the Tribunal in numerous cases. Court held that in the normal course, we would have directed the petitioner to file representation with the CBDT making a demand for justice, before we considered issuing of a writ of mandamus. However, in the peculiar facts of this case, the petitioner is required to file return of income by 31^st October, 2019. It is only now when the petitioner was in the process of filing his return electronically that the petitioner realized that he is unable to make a claim of set off under Section 72 of the Act, even though the claim itself is prima facie allowable in view of the decisions of the Tribunal in  M.K. Creations v. ITO (2017) 6 TMI 821 (Mum.)(Trib.)  and in ITO v. Smart Sensors & Transducers Ltd. (2019) 104 taxmann.com 129 /176 ITD 104 (Mum.)(Trib.). In the absence of the petitioner filing its return of income on or before 31^st October, 2019  the petitioner is likely to face penal consequences. We also in the present facts are of the view that awaiting the order of the Assessing Officer under Section 139(9) of the Act, declaring the return as defective, will not help as the issue would continue to remain even if a fresh return is filed. The issue raised is a fundamental issue, which needs to be addressed by the CBDT. On the facts the petitioner is directed to make representation to CBDT. The petitioner is directed to file the return electronically as well as manually. Court also observed that the issue raised by the petitioner does not appear to be an issue only in an individual case, but may affect the whole body of the assessees’ (whose claim may not fit in the prescribed proforma). Thus, a clarification on this issue by the CBDT may be beneficial to the entire body of assessee, in fact, who seek to make a claim which according to them, the prescribed proforma does not provide for.