9911796707
TMI Blog1988 (7) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... essee did not file his return of income for asst. yr. 1979-80 within the time allowed under s. 139(3). The return was filed as late as19th Sept., 1983and was treated by the ITO as invalid return and no assessment was made on that basis. In the assessee's assessment for asst. yr. 1980-81, the assessee's share of loss from the aforesaid firm was not carried forward and set off. The assessee, therefore, moved an application under s. 154 claiming that the said loss be carried forward and set off against the income for asst. yr.1980-81. This application was rejected by the ITO. The assessee preferred appeal to the AAC who allowed the assessee's appeal observing that since the loss had been determined in the case of the firm, no fresh determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which reads as under: "72(1) Where for any assessment year, the net result of the computation under the head "Profits and gains of business or profession" is a loss to the assessee, not being a loss sustained in a speculation business, and such loss cannot be or is not wholly set off against income under any head of income in accordance with the provisions of s. 71, so much of the loss as has not been so set off or, where the assessee has income only under the head "Capital gains" relating to capital assets other than short-term capital assets and has exercised the option under any other head, the whole loss shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and (i) it shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s net income under the particular head of income. Therefore, in order to arrive at an amount which can be carried forward under s. 72, the exercise contemplated in ss. 70 and 71 has to be gone into and that is possible only when the assessee files his own return and gets an assessment made on him. It is only when the net result of computation in his personal assessment under the head 'profits and gains of business or profession' is a loss to the assessee that the carry forward to the following assessment year would be possible. 4. The learned counsel for the assessee contended that the assessee had no source of income other than the share from the partnership firm, and hence no assessment was necessary. This contention, in our view, has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss was possible under law. 6. For the reasons discussed above, we are of the opinion that no loss having been determined in the assessee's case for asst. yr. 1979-80, no carry forward was permissible in asst. yrs. 1980-81 and 1981-82. As regards the assessee's contention that the loss included depreciation granted to the firm that, in our view, does not make any difference so far as the assessee's assessment was concerned. Under sub-s. (2) of s. 32, depreciation allowance to which effect could not be given in the assessment of the firm or its partners could be treated to be a part of the depreciation allowance of the firm for the succeeding year. Such a contention could, therefore, possibly be raised in the assessment of the firm and not i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
