Delhi H.C : Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the assessee is entitled to the carry forward of the loss of Rs. 31,355 under the relevant provisions of IT Act, 1961 ?

R.C. Pandey with Ajay Jha, for the Revenue : None, for the Assessee

JUDGMENT

ARIJIT PASAYAT, C.J. :

At the instance of Revenue, following question has been referred for opinion of this Court under s. 256(1) of the IT Act, 1961 (in short the ‘Act’), by the Appellant Tribunal, Delhi Bench ‘C’ (in short the ‘Tribunal’) : “Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the assessee is entitled to the carry forward of the loss of Rs. 31,355 under the relevant provisions of IT Act, 1961 ?”

2. Dispute relates to asst. yr. 1975-76 for which the relevant previous year ended on 30th June, 1974. Factual background is as under : Assessee, an individual, derived income from property and also shares from registered firms. According to the Revenue, a notice under s. 148 of the Act was issued for the assessment year in question on 4th Dec., 1976, and it was served on 15th Dec., 1976. A return was filed on 8th July, 1977, declaring loss of Rs. 29,560. It was mentioned that this was a duplicate one as the original return was filed on 30th Dec., 1976, vide receipt No. 5966. A revised return was filed on 31st Jan., 1978, showing loss of Rs. 58,800. In the revised return assessee included loss of 1973-74 and 1974-75 also. According to ITO, the original return as well as the revised return were not filed voluntarily under s. 139 of the Act and, therefore, the question of any carry forward of loss did not arise. The net loss was computed at Rs. 31,355 but it was not carried forward in view of conclusions that the return was not filed voluntarily. Assessee preferred appeal before the AAC. It was pointed out that no notice under s. 148 of the Act was served. It was pointed out that the return filed on 30th Dec., 1976, duplicate of which was filed on 8th July, 1977 was revised on 31st Jan., 1978. These according to the assessee, were returns under s. 139(4) of the Act. AAC noticed that no reasons were recorded by the ITO for initiation of proceedings under s. 148 of the Act and it was further noticed that there was no material to show about service of notice under s. 148. Accordingly the claim of assessee was allowed.

3. Placing reliance on the decision of the apex Court in CIT vs. Kulu Valley Transport Co. (1970) 77 ITR 518 (SC) : TC 46R.353 Revenue appealed before the Tribunal. On consideration of rival circumstances, Tribunal came to hold that there was no material to show about the service of notice under s. 148 and, therefore, the returns were to be treated as voluntary returns. On being moved for reference, the question as set out above, has been referred for opinion of this Court.

4. We have heard learned counsel for the Revenue. There is no appearance on behalf of assessee in spite of notice. As the Tribunal has recorded a finding of fact that there was no evidence of service of notice under s. 148 of the Act, the returns filed were to be treated as voluntary returns. In view of these factual conclusions, no question of law arises which needs determination. The question, therefore, is not answered.

The reference is accordingly returned unanswered.

[Citation : 249 ITR 297]