Commissioner of Income Tax vs Devshree Vipanan Sahakari Sanstha Ltd.

A.R. Tiwari, J.—The applicant (Commissioner of Income Tax, Bhopal) has filed this application u/s 256(2) of the Income Tax Act, 1961 (for short "the Act"), seeking a direction to the Tribunal to state the case and to refer the proposed question of law after rejection of the application registered as R. A. No. 441/Ind of 1991 for the assessment year 1984-85 on January 10, 1992, arising out of the order dated February 22, 1991, passed by the Tribunal in I. T. A. No. 995/Ind of 1985, for our consideration and opinion :

"Whether, on the facts and in the circumstances of the case and on interpretation of the relevant provision of the statute, the Income Tax Appellate Tribunal was justified in holding that the assessee was entitled to carry forward of losses though the return was belated ?"

Briefly stated, the facts of the case are that the assessee submitted the return of income showing loss of Rs. 2,39,860 on October 23, 1984. As the return was not filed within time prescribed u/s 139(1) of the Act, the Assessing Officer denied carry forward of the loss. In appeal the Commissioner of Income Tax (Appeals) placed reliance on Commissioner of Income Tax, Punjab Vs. Kulu Valley Transport Co. P. Ltd., and permitted the carry forward of the loss. Aggrieved, the Department filed the appeal before the Tribunal. The Income Tax Appellate Tribunal placed reliance on Co-operative Marketing Society Ltd. v. CIT [1985] 143 ITR 99, and dismissed the appeal as meritless. The Department then filed an application u/s 256(1) of the Act, which was rejected. Thereafter the applicant has filed this application u/s 256(2) of the Act.

We have heard Shri D.D. Vyas, learned counsel for the applicant/ Department, and Shri Nazir Singh, learned counsel for the non-applicant/ assessee.

We find that the Tribunal declined to state the case and to refer the question on the ground that the point in issue was squarely covered by a decision in Co-operative Marketing Society Ltd. Vs. Commissioner of Income Tax, . Moreover the aforesaid point also stands concluded by the decision in Commissioner of Income Tax, Punjab Vs. Kulu Valley Transport Co. P. Ltd., and is also sustainable on Board''s Circular No. FC 211 of September 8, 1970.

It is thus clear that the question proposed in this application stands concluded by the aforesaid decisions. Nothing substantial is urged to take a different view in the matter.

In the result, we find that there is no referable question of law and accordingly this application deserves the fate of dismissal.

Consequently, we reject this application but without any order as to costs.

Counsel fee for each side is, however, fixed at Rs. 750 if certified.