JOSEPH MATHEW vs COMMISSIONER OF INCOME TAX

K. Narayana Kurup, J.:

This petition filed u/s 256(2) of the Income Tax Act, 1961, arises out of the order passed by the Tribunal in R.A. No. 110/Coch/1998 in ITA No. 152/Coch/1994. The relevant assessment year is 1988-89. The question of law sought to be referred is :

''Whether, on the facts and in the circumstances of the case of the Tribunal was correct in holding that unless the share income or loss of a partner of a firm has been determined in an assessment of the firm a partner of the firm is not entitled to set off of his share of loss from the firm against his income from any other source ?"

According to learned counsel for the petitioner the order of the Tribunal holding that the question of law as formulated by the petitioner does not arise for consideration is erroneous and unsustainable. The petitioner is claiming set off of his share of loss from the firm M/s MMJ Plantations against his income from other source for the same year. On the basis of the contention thus raised by the petitioner and also on the facts and circumstances brought out in this case at the time of hearing, we are of the opinion that the question of law referred to above does arise for consideration in this case. We, therefore, direct the Tribunal, Cochin Bench, to refer the above-mentioned question of law for the opinion of this Court. The original petition stands disposed of as above.