COMMISSIONER OF Income Tax vs R. CHANDRAN.

K. S. PARIPOORNAN J. - The Revenue is the petitioner. The respondent is an assessee to Income Tax. For the year 1976-77, he filed a return showing a loss of Rs. 18,550. Though the fact of loss was accepted with slight variations, the Income Tax Officer refused to carry forward the loss on the ground that the return was not filed u/s 139(1) of the Income Tax Act. This was upheld in appeal. In second appeal, the Appellate Tribunal held that the return had to be considered as one filed u/s 139(4) of the Act. The Tribunal relied on the decision of the Bombay High Court i Telster Advertising Pvt. Ltd. Vs. Commissioner of Income Tax, Bombay City I., . The Bombay High Court has followed the decision of the Supreme Court in Commissioner of Income Tax, Punjab Vs. Kulu Valley Transport Co. P. Ltd., . It was one rendered under the Indian Income Tax Act, 1922. The Revenue filed an application u/s 256 (1) of the Income Tax Act to refer two questions of law which arose out of the decision of the Appellate Tribunal. It was declined. Thereupon this original petition was filed by the Revenue, praying that this court may be pleased to direct the Income Tax Appellate Tribunal to refer the two questions of law formulated in paragraph 7 of the original petition for the decision of this court. They are as follows :

"1. Whether, on the facts and in the circumstances of the case, the assessee is entitled to carry forward the loss determined by the Income Tax Officer ?

Whether, on the facts and in the circumstances of the case and on an interpretation of the relevant provisions of the statute, the Tribunal is right in holding that the return must be taken to have been filed u/s 139(4) ?"

We heard counsel for the Revenue, Mr. Menon. The decision in Commissioner of Income Tax, Punjab Vs. Kulu Valley Transport Co. P. Ltd., rendered by the Supreme Court, as also the other decisions, which have followed the said case, requires a fresh appraisal, in view of the provisions contained in section 139(1) read with section 139(4) of the Income Tax Act. We should state that the provisions of the Indian Income Tax Act, 1922, sections 22 and 23, were far different from the provisions contained in the 1961 Act. In the circumstances, we are satisfied that the questions of law formulated by the Revenue in paragraph 7 of the original petition (quoted above) do arise out of the order of the Appellate Tribunal. Accordingly, we direct the Appellate Tribunal to refer the above-mentioned two questions of law for the decision of this court.

The original petition is allowed.

A copy of this judgment may be forwarded to the Income Tax Appellate Tribunal, Cochin Bench, for compliance