1966 (10) TMI 21 - HC - Income Tax

Whether having regard to cl. (e) of the proviso to s. 24(2), the assessee, an unregistered firm, was entitled to carry forward the whole of the loss including the share of the loss of the two retiring partners - Held, no

Summary

Issues:
1. Interpretation of clause (e) of the proviso to section 24(2) of the Indian Income-tax Act, 1922 regarding the entitlement of an unregistered firm to carry forward losses, including the share of losses of retiring partners.

Analysis:
The case involved a reference under section 66(1) of the Indian Income-tax Act, 1922, regarding the entitlement of an unregistered firm, "The Bharat Engineering and Construction Company, Udipi," to carry forward losses, including the share of losses of two retiring partners. The firm had incurred losses in previous assessment years and earned profits in a subsequent year. The key question was whether the firm could set off its earlier losses against the profits earned in the subsequent year, considering the change in the firm's constitution due to the retirement of two partners.

The Income-tax Officer initially held that the firm could not carry forward the entire loss proportionate to the share of the retired partners. However, the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal ruled in favor of the firm, allowing it to carry forward the entire loss despite the change in constitution. The Tribunal's decision was based on the interpretation that clause (c) of the proviso to section 24(2) did not control clause (e), which deals with the carry-forward and set-off of losses by a firm in case of a change in constitution.

The High Court analyzed the relevant provisions of the Income-tax Act, including sections 24, 26, and 16, along with the provisos. It emphasized that clause (e) of the proviso to section 24(2) was the crucial provision for determining the firm's entitlement to carry forward losses. The court clarified that clause (c) did not govern clause (e) and that the two clauses operated independently in different contexts. It highlighted that the focus should be on the firm as the assessee, not individual partners, in the case of an unregistered firm.

The court rejected the contention that the term "firm" in clause (e) referred only to registered firms, emphasizing that the term encompassed both registered and unregistered firms throughout the Income-tax Act. It relied on legal principles and authoritative sources to support its interpretation of the relevant provisions. Ultimately, the court held that the unregistered firm was not entitled to carry forward the entire loss, including the share of losses of the retiring partners, based on the provisions of clause (e) of the proviso to section 24(2).

In conclusion, the court answered the reference question by ruling that the unregistered firm was not entitled to carry forward the entire loss, including the share of losses of the retiring partners. The court also directed the assessee to pay the costs of the reference, including the advocate's fee.