Calcutta H.C : Amalgamation scheme sanctioned by BIFR under SICA will have overriding effect.

High Court Of Calcutta

CIT Vs. J.K. Corporation Ltd.

Assessment Year 1992-93

Section : 72A

Kalyan Jyoti Sengupta And Kalidas Mukherjee, JJ.

ITR No. 1 Of 2000

October  5, 2010 

JUDGMENT

K.J. Sengupta, J. – The above matter arises out of the reference made by the learned Income-tax Appellate Tribunal, Calcutta basing on the statement of case which is as follows :

The assessee/respondent J.K. Corporation is the company and was formerly known as Straw Products Ltd. (in short “SPL”) and on change the present name is assumed with effect from June 17, 1994.

2. On or about January 25, 1994, one M/s. Orissa Synthetic Limited (in short “OSL”) was declared a sick industrial undertaking and by an order of the company court this company was amalgamated with the then SPL being the present assessee with a new name. The assessee for the assessment year 1992-93 filed its returns of income on December 31, 1992, being the due date, declaring a total income of Rs. 23.58 crores. The notice under section 143(2) was issued on November 26, 1993. Thereafter the assessee filed another return stated to be a revised one on March 31, 1994, claiming total loss of Rs. 152.12 crores. This loss consisted of Rs. 7.97 crores pertaining to M/s. SPL and Rs. 134.15 crores pertaining to M/s. OSL, the amalgamated company. The loss of OSL included as follows :

(i) unabsorbed business loss for earlier years,
(ii) current year’s business loss from February 1, 1992 to March 31, 1992,
(iii) unabsorbed depreciation allowance for earlier years, and
(iv) unabsorbed investment allowance for earlier years.

 

3. The above claim of set off and carry forward of loss attributed to M/s. OSL was pursuant to the order of the Board for Industrial and Financial Reconstruction (hereinafter referred to BIFR, dated January 25, 1994, sanctioning a scheme for rehabilitation of M/s. OSL The said OSL made a reference in 1990 and upon observing procedure namely appointment of operating agency, preparation of the above scheme for amalgamation/merger and upon deliberation the said scheme was ultimately sanctioned for rehabilitation by way of amalgamation/merger of OSL with the assessee. Subsequently, the BIFR also passed an order on March 17, 1994, whereby it amended the scheme incorporating sub clauses (d) and (e) to clause 4C of the scheme and also issued a declaration under section 72A(1) of the Income-tax Act 1961, (hereinafter referred to as the said Act). The BIFR also issued certificate under section 72A(2)(ii) of the said Act on May 15, 1994 and passed an order on August 28, 1995, to the effect that it had issued certificate under section 72A(2)(ii) on May 15, 1994, and it was observed that if that certificate is filed with the returns subsequently it would be deemed to be due compliance under section 72A of the said Act. The said scheme of BIFR by its order made it retrospective operation with effect from February 1, 1992. Obviously, taking benefit of the said date of effect the assessee-company claimed losses in the case of M/s. OSL for the period February 1, 1992 to May 31, 1992 in the hands of the assessee. The assessee filed the certificate dated May 15, 1994, issued by the BIFR as aforesaid with the Assessing Officer on August 8, 1994. On March 31, 1994, the assessee filed another return stated to be the revised one. The assessment was made under section 143(3) on March 31, 1995.

4. The Assessing Officer while passing assessment order disallowed the assessee’s claim under section 72A for set off and carry forward of unabsorbed business loss, unabsorbed depreciation and unabsorbed investment allowance of M/s. OSL.

5. The reasons for disallowances are summarized as follows :

(a) The first revised return filed on March 31, 1994, was beyond the stipulated time under section 139(1). In view of section 80 read with section 139 sub-section (3) of the said Act set off of loss cannot be allowed.
(b) There was no declaration by the Central Government under section 72A(1).
(c) The amalgamation cannot be made operative retrospectively with effect from February 1, 1992, when the order sanctioning the scheme itself was passed on January 25, 1994.
(d) The business of the amalgamating company was not carried on by the amalgamated company during the relevant previous year i.e., during the period February 1, 1992 to March 31, 1992, hence the conditions under section 72A(2)(i) were not complied with.
(e) Certificate under section 72A(2)(ii) was not filed along with the return.
(f) Consent of the Central Government had not been taken in accordance with Circular No. 683 dated June 8, 1994 ([1994] 208 ITR (St.) 98) of the Central Board of Direct Taxes withdrawing earlier Circular No. 523 dated October 5, 1988, and Circular No. 576 dated August 31, 1996.

 

6. The Assessing Officer also disallowed the claim of Rs. 5 lakhs paid to PHD Chamber of Commerce for construction of Lakshmipat Singhania Auditorium and Rs. 10,000 paid to M/s. Price Waterhouse and Co. for valuation of shares. The Assessing Officer also disallowed Rs. 60,16,537 being roll-over charges for payment of foreign currency loans. A sum of Rs. 41,12,177 claimed as deduction under section 36(1)(iii) on account of interest on funds borrowed for purchase of plant and machinery was disallowed by the Assessing Officer.

7. On appeal being taken the Commissioner of Income-tax (Appeals) (hereinafter referred to first appellate authority) however, held partly in favour of the assessee-company and partly in favour of the Revenue. The appellate authority held amongst others as follows :

(i) that the revised return filed on March 31, 1994 claiming the loss was valid and was not affected by the provisions of section 80 showing profit was filed within time,
(ii) relief under section 72A could not be denied to the assessee on the ground that certificate under section 72A(2)(ii) was not enclosed with the return by BIFR and was filed before the assessment was completed, and
(iii) declaration under section 72A(1) made by the BIFR was valid declaration in view of section 32(2) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as SICA).

8. The first appellate authority, however, held that the effect of amalgamation could not be given for the purpose of assessment on and from February 1, 1992. The requirement of section 72A(2)(ii) was not complied with inasmuch as the assessee in fact did not carry on business of the amalgamated company during the relevant previous years ended March 31, 1992 since the order of BIFR was passed on January 25, 1994.

9. The appellate authority has also held that the benefit under section 72 cannot be given as notice was not given to the Central Government as Circular No. 683 dated June 8, 1994 ([1994] 208 ITR (St.) 98) was binding on the Assessing Officer.

10. After holding the above, the first appellate authority affirmed the aforesaid disallowances.

11. In view of the aforesaid decisions of the first appellate authority partly in favour of the assessee/respondent and partly in favour of the Revenue both parties preferred appeal therefrom before the learned Tribunal. The learned Tribunal after having elaborate discussion granted all the reliefs to the assessee/respondent viz. the returns filed by the assessee claiming benefit of the said scheme for amalgamation framed by the BIFR was accepted and all the benefits in terms of the scheme of amalgamation have been held to be valid. The disallowance of the expenses as claimed by the assessee in its return were deleted meaning thereby the claim for deduction was allowed by the learned Tribunal.

12. On the aforesaid facts and circumstances of the case both the Revenue and the assessee-respondent filed two applications before the Tribunal. The said cases were registered as R.A. Nos. 277 and 278 (Cal) of 1998 in respect of two appeals being I.T.A. Nos. 1650 and 1755 (Cal) 1996 before the learned Tribunal respectively.

13. The learned Tribunal after hearing both the parties and considering the rival contention and taking note of the question raised both by the Revenue and the respondent/assessee ultimately referred by its order dated September 20, 1999 the following questions for opinion of this court :

“(A)   Whether, on the facts and in the circumstances of the case and on correct interpretation of the scope and ambit of sections 18(7) and 19(2) of the SIC (Special Provisions) Act, 1985, and harmonious construction of the above said provision of the SIC (Special Provisions) Act, 1985, the Tribunal was correct in law in holding that the sanctioned scheme shall be conclusive evidence of the said requirements regarding the consent of the Central Government/Central Board of Direct Taxes having been complied with as required in section 19(2) and mentioned in the Central Board of Direct Taxes Circular No. 683 dated June 8, 1994 ?
(B)   Whether, on the facts and in the circumstances of the case and on correct interpretation of the scope and section 32(1) of the SIC (Special Provisions) Act, 1985, the Tribunal was correct in law in holding that on a scheme having been sanctioned under the SICA, the provisions of the scheme have overriding effect over any other law except the FERA and the ULCRA ?
(C)   Whether the Tribunal was right in holding that in view of the scheme sanctioned by the BIFR on January 25, 1994, approval/consent of the Central Government/Central Board of Direct Taxes was not necessary in view of the SIC (Special Provisions) Act, 1985 ?
(D)   Whether on the facts and in the circumstances of the case and on correct interpretation of the scope and ambit of section 32(1) of the SIC (Special Provisions) Act, 1985, the Tribunal was correct in law in holding that the scheme having been sanctioned, the same will have overriding effect in view of the provision of section 32(2) of the SIC (Special Provisions) Act and so the assessee having been exempted from the applicability of the provisions of section 80 and section 139 of the Income-tax Act, 1961, vide BIFRs order dated March 17, 1994, the revised return of loss filed by the assessee shall be treated to be valid return of loss duly filed ?
(E)   Whether the Tribunal was right and justified in law in not considering and deciding the alternative contention raised on behalf of the assessee that original return showing profit having been filed within the time limit under section 139(1) the revised return filed on March 31, 1994, claiming the loss was not beyond the time contemplated by the provision of section 139(3) and section 80 even when the Tribunal had found the revised return of loss to be valid in view of the assessee having been exempted from the application of the provision of sections 80 and 139 of the Income-tax Act, vide BIFR order dated March 17, 1994 ?”

14. Mr. Agarwal submits that the decision taken by the Assessing Officer is perfectly lawful and valid as the tax benefit of the scheme framed and sanctioned by the BIFR on January 25, 1994, cannot be given in relation to the assessment year 1992-93, meaning thereby retrospective operation in the matter of the exemption cannot be granted. According to him when the scheme is sanctioned the amalgamation and/or merger takes place on the date of passing of the order and the amalgamated company viz. the assessee herein can get the benefit in the matter of exemption on and from that date only when it is passed though the scheme provides for retrospective operation, but retrospective operation is meant for other purpose not for exemption. Factually, the assessee-company did not carry on business for the period of qualifying years as required in section 72A of the Income-tax Act. All the transactions had taken place prior to amalgamation. Moreover, consent of the Central Government in cases involving financial assistance for rehabilitation of sick industrial undertaking is required to be expressly given and it was given earlier by two Circulars being No. 523 dated October 5, 1988 and subsequent Circular No. 576 dated August 31, 1990.

15. Those circulars were of general nature. Subsequently, by new Circular No. 683 dated June 8, 1994 the Central Board of Direct Taxes has issued a circular superseding earlier circulars providing fiscal concession or financial assistance under direct taxes will now be considered in each individual case on the merits for the purpose of granting consent as contemplated in section 19(2) of the SICA, 1985. According to him the consent given by the Board is of no effect.

16. He submits that irrespective of the provisions in the SICA 1985 the consent of the Revenue is expressly required as it is contemplated in the said Act itself. This circular is binding upon the Assessing Officer and he has followed it.

17. When admittedly there has been no consent of the Central Government in terms of the above circular the consent granted by the BIFR in the scheme granting fiscal concession is not acceptable nor the same is valid.

18. Mr. R.N. Bajoria, learned senior advocate while appearing for the respondent/assessee submits while referring to section 32(2) of the SIC Act, 1985, that the BIFR by the Act has been authorized by Parliament on behalf of the Government to give consent. When the Board upon consideration and deliberation sanctioned a scheme and had given consent as required under the aforesaid Act no further consent from the Government is required as erroneously held by the Assessing Officer.

19. He contends that the endeavour of the Assessing Officer in his order appears to be nullifying the scheme framed by the BIFR. Admittedly, there has been no challenge against the said scheme and it has reached its finality. Once the scheme is framed and sanctioned by the BIFR by virtue of section 18(7) of the SICA 1985 it becomes conclusive and binding upon the parties.

20. In this connection he has placed reliance on the decision of the Supreme Court in case of Marshall Sons and Co. (India) Ltd. v. ITO reported in [1997] 223 ITR 809 and he has also referred to a decision of the Supreme Court in case of Tayabbhai M. Bagasarwalla v. Hind Rubber Industries P. Ltd. reported in [1997] 3 SCC 443, on the question that once an order passed by the statutory authority cannot be indirectly or directly held to be void until and unless the appropriate authority in appropriate proceedings declares it so.

21. He further submits that by virtue of section 32 the provision of the SICA the schemes made thereunder has overriding effect on all laws except the Foreign Exchange Regulation Act, the Urban Land (Ceiling and Regulation) Act, 1973 or in the memorandum and articles of association of industrial company or in any other instrument having effect by virtue of any law other than this Act. Therefore, he contends that both the Assessing Officer and the first appellate authority formed an erroneous opinion about the applicability of the said scheme.

22. He also submits that in view of the provisions under sections 18, 32(2) the BIFR cannot sanction any scheme without declaring carry forward of loss and unabsorbed depreciation. So, in this context, he has drawn our attention to a Supreme Court judgment in the case of Indian Shaving Products Ltd. v. Board for Industrial and Financial Reconstruction reported in [1996] 218 ITR 140 (SC).

23. His next contention is in relation to the fifth question that when the Tribunal has decided in favour of his client with relation to applicability of section 32 and section 85 the learned Tribunal should have considered other aspects and decided that the loss claimed in the revised return filed on March 31, 1994, was not beyond the time stipulated in the provision of section 139(3) and section 80, and exemption should have been allowed from the applicability of the provisions of sections 80 and 139 of the Income-tax Act.

24. We have carefully considered the contention of learned counsel for both parties and we have gone through the judgment and order of the Assessing Officer, Commissioner of Income-tax (Appeals) and the learned Tribunal. While noting the questions referred to by the learned Tribunal about the power of the BIFR as aforesaid, we think that before we give answer to the question specifically raised it is appropriate to discuss the power of the BIFR in sanctioning scheme once a sick industrial company makes a reference under the said Act.

25. Section 15 of the SICA provides for methodology of reference. This reference can be made by the sick industry itself or by the Central Government, Reserve Bank or State Government or public financial institution or State level institution or any scheduled bank.

26. Section 16 provides for methodology of making enquiry for determining whether any industrial company has become a sick or not. Under section 16(2) while making enquiry and for expeditious disposal we find the operating agency is to be appointed to enquire into the affairs of the company and to submit report. While doing so the Board can take all measures as provided in the said section during enquiry.

27. Under section 17 the Board passes a suitable order for completion of the enquiry made by the operating agency. The Board under section 18 after having considered everything as mentioned in the previous section prepared and sanctioned the scheme for revival and rehabilitation with various measures. One of the measures of revival is amalgamation of the sick company with any other company.

28. The relevant provision being section 18, sub-section (1), clause (c) of the SICA is as follows :

“(c) the amalgamation of—

(i)   the sick industrial company with any other company, or
(ii)   any other company with the sick industrial company ;

(hereafter in this section, in the case of sub-clause (i), the other company, and in case of sub-clause (ii), the sick industrial company, referred to as `transferee company’).”

29. In case of amalgamation, the Board is to take step as follows :

30. Under sub-section (3)(a) the scheme prepared by the operating agency shall be examined by the Board and a copy of the scheme with modification, if any, made by the Board shall be sent, in draft, to the sick industrial company and the operating agency, and in the case of amalgamation, also to any other company concerned, and the Board shall publish or cause to be published the draft scheme in brief in such daily newspapers as the Board may consider necessary, for suggestions and objections, if any, within such period as the Board may specify.

31. Under section 18, sub-section (3)(b) it provides that the Board may make such modifications, if any, in the draft scheme as it may consider necessary in the light of the suggestions and objections received from the sick industrial company and the operating agency and also from the transferee industrial company and any other company concerned in the amalgamation and from any shareholder or any creditors or employees of such companies.

32. After compliance with all the aforesaid finally the Board sanctions the scheme under section 18 sub-section (4) of the said Act which specifically provides as follows :

“(4) The scheme shall thereafter be sanctioned, as soon as may be, by the Board (hereinafter referred to as the ‘sanctioned scheme’) and shall come into force on such date as the Board may specify in this behalf.”

33. Thus, it is plain that date of operation of the scheme may be prospective or may be retrospective as the situation will demand and as per the decision of the Board. Sub-section (5) of the said section also provides for review, modification of any sanctioned scheme at the instance of the operating agency.

34. Section 19 of the said Act provides for rehabilitation arranging financial assistance and concerned financial institutions who have stake in the sick industrial company are notified for consenting and if no consent is received within a particular period then the Board is to adopt such other measures.

35. Section 25 provides for appeal by any person aggrieved by an order of the Board. In this case, admittedly, there has been no appeal against the order sanctioning the scheme. Section 26 of the said Act provides bar of jurisdiction with regard to entertainment of any challenge against the order passed by the BIFR except as provided in the Act. The said section 26 provides as follows :

“26. Bar of jurisdiction.—No order passed or proposal made under this Act shall be appealable except as provided therein and no civil court shall have jurisdiction in respect of any matter which the Appellate Authority or the Board is empowered by, or under, this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” (Emphasis supplied)

36. Section 32 of the said Act is of significant importance with regard to operation of the provisions of the Act and rules and schemes made thereunder. Therefore, the aforesaid section is quoted hereunder :

“32. Effect of the Act on other laws.—The provisions of this Act and of any rules or schemes made thereunder shall have effect not-withstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the memorandum or articles of association of an industrial company or in any other instrument having effect by virtue of any law other than this Act.”

37. Section 32, sub-section (2), specifically provides as follows :

“(2) Where there has been under any scheme under this Act an amalgamation of a sick industrial company with another company, the provisions of section 72A of the Income-tax Act, 1961 (43 of 1961), shall, subject to the modifications that the power of the Central Government under that section may be exercised by the Board without any recommendation by the specified authority referred to in that section, apply in relation to such amalgamation as they apply in relation to the amalgamation of a company owning an industrial undertaking with another company.”

38. Section 18 sub-section (7) and also sub-section (8) provide as follows :

“(7) The sanction accorded by the Board under sub-section (4) shall be conclusive evidence that all the requirements of this scheme relating to the reconstruction or amalgamation, or any other measure specified therein have been complied with and a copy of the sanctioned scheme certified in writing by an officer of the Board to be a true copy thereof, shall, in all legal proceedings (whether in appeal or otherwise) be admitted as evidence.”

“(8) On and from the date of the coming into operation of the sanctioned scheme or any provision thereof, the scheme or such provision shall be binding on the sick industrial company and the transferee company or, as the case may be, the other company and also on the shareholders, creditors and guarantors and employees of the said companies.”

39. In this case, it appears that the Assessing Officer has altogether ignored the legal effect of the scheme taking note of Circular No. 683 dated June 8, 1994 as the consent was not accorded by the Central Government. In other words, the Assessing Officer thought that the circular is having overriding effect over the said provision of the sanctioned scheme. The Appellate Authority, however, did not choose to follow the same course of action but recognized the effect of the scheme but on the facts it did not make the said scheme applicable on various grounds mentioned therein.

40. In the context as aforesaid, we now examine the legal effect of the scheme sanctioned by the BIFR which remains unchallenged. The SICA is a special Act and the scheme framed thereunder is of tremendous implication. So, it is binding upon everyone, as it has assumed the character of conclusiveness by virtue of section 18 sub-section (4) and also sub-section (8). The scheme has mentioned the date on which it will become operative. It has been specifically mentioned that the said scheme would be operative from February 1, 1992, though the same was sanctioned on January 25, 1994.

41. We are of the opinion that the Board has ample power to fix the date to make the scheme operative from any day and we have quoted its authority under the said Act. Before the scheme had been prepared the draft was circulated by advertisement in the newspaper and no one had raised any objection. According to us the right of objection has been waived as by and under section 32(2) of the Act on behalf of the Central Government the Board has been empowered to give consent as is required to be done under the provisions of section 72A of the Income-tax Act, 1961. Under the aforesaid sub-section all the powers of the Central Government can be exercised by the Board without any interference or intervention of the authority referred to therein. Therefore, in this case, the Board really acts on behalf of the Central Government and when the Board is satisfied that all the conditions are fulfilled for giving consent for taking rehabilitation measures by way of amalgamation separate consent by notification by the Central Board of Direct Taxes is not required.

42. We could find this legal position from the decision of the Supreme Court in case of Indian Shaving Products Ltd. v. Board for Industrial and Financial Reconstruction reported in [1996] 218 ITR 140. In paragraph 28 of page 148 of the report Justice Bharucha for the Bench spoke legal position in this context as follows (headnote) :

“By reason of section 32(2) of the said Act, where there has been under any scheme thereunder an amalgamation of a sick industrial company with another company, the provisions of section 72A of the Income-tax Act shall apply in relation to such amalgamation, subject to this modification that the power of the Central Government is to be exercised by the BIFR without the necessity of a recommendation by the specified authority mentioned in section 72A of the Income-tax Act. This is because, for the purposes of according sanction to a scheme of amalgamation of a sick industrial undertaking with any other company under section 18 of the said Act, the BIFR has to be satisfied that the amalgamating company is not financially viable, which is the effect of section 3(1)(o) of the said Act, and that the amalgamation is necessary or expedient in the public interest, which is the effect of sections 17 and 18 of the said Act read together. Sanction of a scheme of amalgamation under section 18 of the said Act necessarily implies that the requirements of section 72A of the Income-tax Act have been met and the BIFR must exercise the power conferred upon it by section 32(2) of the said Act and make the declaration contemplated by section 72A of the Income-tax Act.”

43. In other words, once the scheme is framed by virtue of section 32 sub-section (1) the same overrides all other provisions of law including the Income-tax Act 1961 and also other instrument or document having effect by virtue of any law. The Board derives authority under section 120(6) of said Act which itself is overridden.

44. It appears that the text of the said circular dated June 8, 1994 relied on by the Assessing Officer is clearly inconsistent with the provision of the said section 32(2).

45. Having regard to the language used in section 26 it is clear that neither the civil court nor any other authority including the quasi-judicial authority can pass any order which would impede the operation of the said scheme. In other words, the scheme can be set at naught only by the BIFR or the AAIFR under the said Act itself and not otherwise except by the constitutional provision.

46. In view of the aforesaid provisions of the said Act which is a special one the income-tax authority cannot have any jurisdiction to render the operation of the said scheme nugatory.

47. It is rightly argued by Mr. Bajoria with the authority of the Supreme Court decision reported in Marshall Sons and Co. (India) Ltd. v. ITO reported in [1997] 223 ITR 809 that date of effect of the scheme is the date as mentioned therein.

48. It is appropriate to quote the relevant portion of the judgment as follows (headnote) :

“Every scheme of amalgamation of companies has necessarily to provide a date with effect from which the amalgamation/transfer shall take place. It is true that while sanctioning the scheme, it is open to the company court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the court so specifies a date, such date would be the date of amalgamation/date of transfer. But where the court does not prescribe any specific date but merely sanctions the scheme presented to it, the date of amalgamation/date of transfer is the date specified in the scheme as `the transfer date’. It cannot be otherwise.”

49. Hence, the income-tax authority has no competence to read the scheme differently as far as date of effect is concerned for any purpose.

50. Under those circumstances, we, therefore, are of the view that while answering question (A), that the Tribunal was correct in law in holding that the sanctioned scheme shall be conclusive evidence of fulfilling of requirements regarding consent of the Central Government/Central Board of Direct Taxes Circular No. 683 dated June 8, 1994.

51. While answering question (B) we express our opinion that the Tribunal was correct in law, on interpretation of the scope and purport of section 32(1) of the SICA, 1985 in holding that once a scheme having been sanctioned under this Act, the provisions of the scheme will have the overriding effect over any other laws except the FERA and the ULCRA.

52. While responding to question (C) we state that the Tribunal was not right in holding for the scheme sanctioned by the BIFR on January 25, 1994 approval/consent of the Central Government/Central Board of Direct Taxes was necessary in view of the provision of the said Act.

53. As far as question being ground (D) is concerned in our view no separate opinion need be expressed and however, we add that the assessee is exempted from fulfilling the provisions of sections 80 and 139 of the Income-tax Act, 1961, in view of the BIFR’s order dated March 17, 1994, it must be held that the revised return of loss filed by the assessee shall be treated to have been validly filed.

54. While answering question (E) we are of the view that the Tribunal was not right and justified in law not considering and deciding the alternative contention raised on behalf of the assessee that when the original return having been filed within the time allowed under section 139(1) the revised return filed on March 31, 1994, claiming loss was not beyond the time as contemplated in the provision of section 139 sub-section (3) and section 80.

55. Thus the aforesaid reference is disposed of in the above lines.

56. Now we send back the matters to the Tribunal for taking appropriate measures in its finality by the Department concerned.

Kalidas Mukherje, J. – I agree.

[Citation : 331 ITR 303]

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