High Court Of Kerala
CIT vs. Rajesh Kumar
Section 72, 80
Asst. Year 1995-96
G. Sivarajan & C.N. Ramachandran Nair, JJ.
IT Ref. No. 164 of 1998
24th September, 2002
Counsel Appeared
P.K.R. Menon, for the Applicant : None, for the Respondent
JUDGMENT
C.N. RAMACHANDRAN NAIR, J. :
This reference is at the instance of the Revenue. The following questions are referred to us for our decision :
Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the question as to whether a loss can be set off can arise only in the assessment of the succeeding year or years when there is a positive income against which such set off is claimed ?
Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in vacating the directions of the AO recorded in the assessment order to the effect that the loss shall not be carried forward ?
2. We heard standing counsel for the Department, but none appeared for the assessee even though notice was served on the assessee. Standing counsel brought to our notice a deduction in CIT vs. Smt. Gunavathy Dharmasy (1999) 157 CTR (Ker) 501 : (2000) 241 ITR 168 (Ker) which is rendered by this Court reversing the order of the Tribunal in ITA 198/Coch/89 in the case of another partner of the very same firm of which the assessee is also a partner. The Tribunal has relied on the said earlier order of the Tribunal and allowed the assessee’s appeal. Since the order relied on by the Tribunal is reversed by this Court in the decision abovereferred, the very basis of the order goes and the finding of the Tribunal has to be reversed. Accordingly we have to answer the question against the assessee and in favour of the Revenue. We also notice the clear-cut finding by the authorities below that the assessee could not file the return for the year 1995-96 within the time provided under s. 139(1) or s. 139(3) and so much so, the assessee is not entitled to carry forward the loss by virtue of the provision contained in s. 80 of the IT Act. The further contention of the assessee raised before the authorities below is that the question of carry forward of loss can be decided only in the succeeding year when set off was claimed. We cannot agree with this proposition also.
We, therefore, answer the question referred to us against the assessee and in favour of the Revenue.
[Citation : 259 ITR 629]
