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TMI Blog1987 (2) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... r Kumar, Roorkee having 50% share each. For the assessment year 1978-79 the said firm was assessed at a loss of Rs. 60,000 which was allocated between the two partners in equal shares i.e. at Rs. 30,000 each. Similarly for the assessment year 1979-80 the said firm was assessed at a loss of Rs. 90,000 and the loss was allocated equally between the two partners i.e. @ Rs. 45,000 each. For the assessment year 1980-81, however, the said firm was assessed at a positive income of Rs. 22,670. Since it was the case of a registered firm the losses suffered by it for the assessment years 1978-79 and 1979-80 could not be carried forward and set off as the provisions of section 75(2) came in the way. It is an admitted case that for the assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance was also placed by him on the opinions expressed in the following two articles : (1) Article by Shri V.S. Ashok Kumar reported in [1984] 43 CTR (Articles) 41. (2) Article by Shri K.N. Balasubramanian reported in 45 CTR 139. He submitted that in the case of a partner in a registered firm, his right to have his share of loss from the firm set off and carried forward in his own case arises from the registered firm's assessment determining the loss and apportioning it among the partners and that neither the filing of a loss return under section 139(3) by the partner nor a fresh determination of the loss in his own assessment as per section 80 is necessary. He also reiterated the view taken by Shri Balasubramanian in his article t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be carried forward and set off under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) of section 74 or sub-section (3) of section 74A." The set off claimed by the assessees in the present case was one which fell under section 72. Section 80 opens with a non-obstante clause and therefore, its provisions could not be diluted or whittled down by any of the provisions contained in sections 66 to 79. Section 80 firstly required that there should have been a return filed under section 139 and secondly that the loss should have been determined in pursuance of the said return. It is only if both these conditions satisfied were that the assessees could justifiably claim the set off of the losses. In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed under section 139(1) and that when no return was filed, section 80 operated as a statutory bar against any loss being considered for being set off in a subsequent assessment. The facts in that case were exactly similar to the facts of the present cases and therefore, we would respectfully follow the said decision. In the case of Katihar Match Works (1954)(P.) Ltd. the assessee had filed a loss return beyond the time prescribed under the Indian Income-tax Act, 1922. The Income-tax Officer held that the assessee's claim to get the loss determined was barred under section 22(2A) and that there was no obligation on him to complete the assessment in such an event and he dropped the proceedings. The appeal filed by the assessee against that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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