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TMI Blog1984 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the ground that she is a member of Schedule Tribes as defined in cl. (25) of Art. 366 of the Constitution of India and is residing in Shillong specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution and that this source of income also lies in the specified area. In support of her contention the assessee placed reliance on the order of the Tribunal, Gauhati Bench, Gauhati, dt. 18th Jan., 1978 in the case of H.O. Unger in ITA Nos. 638 and 639 (Gau) of 1966-67. The ITO on going through the said order of the Tribunal found that no specific order to exempt the assessee of that case from paying income-tax has been passed and that, on the contrary, the Tribunal has directed that the place of accrual of income be investigated. The ITO accepted the assessee s contention that she is a member of Schedule Tribes as defined in Art. 366(25) of the Constitution. The ITO was, however, of the view that since the assessee resides at Shillong in the State of Meghalaya where some area of Shillong has been declared as specified area and some are not as per Tables A and B appended to paragraph 20 of the Sixth Schedule as covered by Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal in the case of H.O. Unger and in the case of Tura Singh in ITA Nos. 120 to 122 (Gau) of 1981, dt. 29th Feb., 1984. 7. We have considered the rival submission as also the facts on record. A plain reading of the provisions contained in cl. (26) of s. 10 makes it abundantly clear that the income of a member of a Schedule Tribes residing in any area specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution shall be exempt if the source of income is in the area referred to above. The benefit available to an assessee by virtue of the fact that he or she is residing in an area specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution and that the source of his or her income is in that area cannot be taken away abridged or abrogated even if that particular area is excluded under the Notification No. TAD/R/50/109 dt. 23rd Feb., 1951 referred to in cl. (26). An assessee living in the area covered by this notification is also entitled to the benefit of exemption under cl. (26) even if that area does not fall within Part I or Part II of the Table appended to paragraph 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l also supports the view that we have taken in this case. 10. As has already been stated above, admittedly, the assessee is a member of Schedule Tribes as defined in cl. (25) of Art. 366 of the Constitution of India. She resides in Shilong which is a part of Khasi and Jaintia Hills District and is, thus, an area specified in Part II of the Table to the paragraph 20. For the assessment year prior to 1975-76 the income from taxi business arose and accrued within Shillong. As has been noted by the ITO in the assessment order for the asst. yr. 1964-65, the assessee gave her taxi to Auto Travel Transport, Police Bazar, Shilong for earning income. The office of the Auto Travel Transport is situated at Police Bazar, Shillong, which also lied within the specified area for the purpose of s. 10 (26). So, prior to the asst. yr. 1975-76 the source of income from taxi business also lay in the area specified in Part II of the Table appended to paragraph 20. The conditions laid down in s. 10 (26) for exemption, thus, stood fulfilled in respect of the income from taxi business for the asst. yrs. 1964-65 to 1967-68, 1969-70, 1971-72, 1972-73 and 1973-74. It has already been pointed out above that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance and has become purely of an academic interest, We, therefore, consider it unnecessary to go into the controversy covered by Ground No. 2. 13. Coming to the cross objection filed by the assessee it may be stated at the outset that the ld. authorised representative for the assessee made a verbal prayer for withdrawing the cross objections for the asst. yrs. 1970-71 to 1976-77 and 1978-79. The prayer has not been opposed on behalf of the Department. We, accordingly, allow the assessee to withdraw the cross objections for the aforesaid assessment years. So, the cross objection for the asst. yrs. 1970-71 to 1976-77 and 1978-79 are dismissed as withdrawn. 14. The assessee is a partner in the firms of M/s Fruto s Co., M/s Shoba Travels, (Gauhati and M/s Sumita Trading Agency. For the asst. yrs. 1965-66, 1966-67, 1967-68 and 1969-70 returns were filed by the assessee on 1st April, 1971 under s. 148 and for the asst. yr. 1968-69 return was filed on 1st April, 1971 under s. 139(2). For the asst. yrs. 1965-66 and 1966-67 the share of loss from M/s Fruto s Co., was included in the assessments. For the asst. yr. 1967-68 the share of loss from M/s Fruto s Co., and M/s Sumita Tradi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss from the firm M/s Sheva Travels, Gauhati ought to have been included in the assessment for the asst. yr. 1967-68 and carried forward and that this has not been done by the ITO. For the asst. yr. 1969-70 it was submitted that before the AAC a ground was raised that there would be a loss income after giving effect to the appellate order of the AAC and so, this share of loss should also be carried forward. The ld. authorised representative for the assessee has further submitted before us that loss as per order dt. 26th Feb., 1983 passed by ITO under s. 251 was Rs. 8,714. 20. The ld. Departmental Representative countered the arguments advanced on behalf of the assessee by submitting that assessments framed under s. 148 were not made for computation of loss and that in such case carry forward of loss is not permissible. It was, further submitted that the assessee was not entitled to carry forward of loss in any of the assessment years. 21. The assessee has filed a paper book containing forty nine pages. The assessee has also filed a second paper book which contains five pages. The paper book contains copies of the grounds of appeal filed before the AAC for various years which go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly hold that the loss has to be carried forward in accordance with law. The orders of the authorities below on the point are set aside and the claim of the assessee for carry forward of loss in accordance with law is allowed, for the asst. yrs. 1964-65 to 1969-70 and 1977-78. 24. It was stated before us by the ld. authorised representative for the assessee that for the asst. yrs. 1969-70 after giving effect to the appellate order of the AAC, the loss income was computed at Rs. 8,714. In this connection, it was submitted before the AAC that in case the decision in appeal results in computation of loss, the loss so determined should be carried forward. This contention is duly supported from the submissions made before the AAC and extracted at p. 4 of the second paper book. So the ITO shall verify the facts stated before us in respect of the asst. yr. 1969-70 and in case he finds that the decision given by the AAC results in computation of loss, the same shall be carried forward. 25. From the order of the AAC dt. 7th July, 1971 in the appeal filed by the firm M/s Sheva Travel, Gauhati in which the assessee was a partner, for the asst. yr. 1967-68, a copy whereof appears at pp. 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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