S.K.V. SELVARAJ vs COMMISSIONER OF INCOME TAX

N. V. BALASUBRAMA1VIAN, J.

The two questions of law relating to assessment of income for the asst. yr. 1979-80 for the opinion of this Court at the instance of the assessee are

as follows:

Whether the Tribunal was right in law and had sufficient material to hold that the applicant would not be entitled to claim the carry forward and

set off of the loss as per the return filed for the asst. yr. 1978-79?

Whether, on the facts and circumstances, the Tribunal was right in holding that the entry made by the ITO in the order sheet for the asst. yr.

1978-79 would not amount to a computation and determination of the loss as per the return filed in view of the decision of the Supreme Court in

Esthuri Aswathiah Vs. The Income Tax Officer, Mysore State, ?

The assessee filed its return of income for the asst. yr. 1979-80 on 31st March, 1982,, claiming adjustment of the loss for the asst. yr. 1978-79.

The ITO rejected the claim of the assessee holding that such an assessment was not made for that year and the assessee''s claim for adjustment of

carry forward of loss of Rs. 75,711 cannot be allowed. It is seen that the return for the asst. yr. 1978-79 was filed belatedly by the assessee on

31st March, 1982 and the ITO mentioned in the order sheet as follows:

Please see volume, return dt. 31st March, 1982 admitting loss of Rs, 71,831 received and filed. The assessee has filed the return belatedly.

Hence, the return may be lodged"".

On the basis of the above remarks, the ITO came to the conclusion that the time limit for completion of the assessment for the asst. yr. 1978-79

would expire within two years from the end of the assessment year and since the assessee filed the return beyond the expiry date for completion of

assessment, the assessee''s claim for adjustment of loss of the asst. yr. 1978-79 could not be considered. Aggrieved, the assessee filed an appeal

before the CIT(A), as his claim for adjustment of carry forward of loss of Rs. 75,711 was not allowed. The CIT(A) also has held that as the return

for the asst. yr. 1978-79 filed by the assessee was beyond the statutory period of assessment, the ITO was precluded from proceeding with the

assessment under s. 143 of the IT Act, 1961 (in short ''the Act''). According to him, since no loss was determined in pursuance of the return filed

under s. 139 of the Act, the loss could not be carried forward.

The assessee took up the matter on appeal to the Tribunal. The Tribunal concurred with the views of the CIT(A) and dismissed the appeal

preferred by the assessee. It is the order of Tribunal that is the subject-matter of reference before us and the two questions of law set out earlier

have been referred to us for our consideration.

We hold that the view of that Tribunal that the loss for the asst. yr. 1978-79 could not be carried forward is correct in law.

Admittedly, the return for the asst. yr. 1978-79 was filed by the assessee only on 31st March, 1982. Under s. 153 of the Act, inter alia, an order

of assessment could be made within two years from the end of the assessment year in which the income becomes assessable and the assessee filed

its return for the asst. yr. 1978-79 beyond the time limit prescribed under s. 163(1) of the Act and the same cannot be regarded as a valid return.

Since the return filed by the assessee was not a valid return, it is not incumbent on the part of the ITO to determine the loss of the assessee under s.

143(3) of the Act. It followed that when there was no determination of loss as contemplated under the Act, it is not open to the assessee to claim

that the loss should be carried forward and adjusted against the income of the next year. We hold that the ITO has merely recorded that the return

for the assessee for the asst. yr. 1978-79 was lodged and he has not chosen to determine the loss as provided under s. 143 of the Act. Therefore,

it is neither permissible nor possible for the assessee to claim that the loss should be carried forward to be set off against the income of the

subsequent assessment year.

The apex Court in Commissioner of Income Tax, Madras and another Vs. M/s. Dalmia Cement (Bharat) Ltd., .. , has considered the question

arising under the provisions of the IT Act, 1922 and after noticing the relevant provisions of law that were prevalent, the Supreme Court held that

the controversy which arose under the IT Act, 1922 would not arise under the IT Act, 1961 and that the ITO under s. 143 of the Act has to

determine not only the profits/income taxable, but also to determine the loss, if there is one. Under the IT Act, 1961 the assessee is entitled to, and

ought to, question the amount of loss determined in an appeal preferred against the assessment order itself. The Supreme Court has further

observed that the assessee need not wait till he receives the intimation under s. 157 of the Act and the assessee could have very well preferred an

appeal against the assessment. It is pertinent to note that the decision of this Court in Commissioner of Income Tax Vs. Dalmia Cement (Bharat)

Ltd., wap reversed by the Supreme Court in CIT vs. Dalmia Cement (Bharat) Ltd. (supra).

In the instant case, admittedly, the assessee had not preferred an appeal against the order lodging the return for the asst. yr. 1978-79 and that

order has become final, the assessee, therefore, cannot claim that it is entitled to claim that loss should be carried and adjusted against the income

of the asst. yr. 1979-80 in the assessment proceedings for 1979-80. We therefore, hold that the order of the Tribunal does not suffer from any

infirmity and we answer both the questions of law referred to us in the affirmative and against the assessee. However, there will be no order as to

costs.