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TMI Blog2014 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... e hands of association or body of individuals leads to the determination of the same at the hands of the member in his assessment and such determination of the share of the income of a member in the association is not left to the computation by the individual member in his return showing his share of income. The AOP in which the assessee was a member had not chosen to declare the loss within the time prescribed under the provisions of the Act by filing a return - The assessee was entrusted with the task of availing the loan and organising the affairs of the AOP - When the AOP was under the legal obligation to file its return declaring loss or income and had defaulted in filing the return within the time prescribed, the assessee cannot ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in holding that the depreciation loss or share thereof cannot be set off against the income of the appellant? 2. The assessee, a member of association of persons (AOP) with six other parties, entered into a joint venture on 01.08.1994 to put up a wind energy generator in the name of M/s.Renuga Wind Energy Farm in areas specified by the Tamil Nadu Government and approved by the Tamil Nadu Electricity Board. The parties agreed to share income/loss of the joint venture along with their asset and liabilities in the following ratio: 1. Sri.N.Jagadeesan HUF 20% 2. Sri.N.Jagadeesan Indl. 40% 3. Sri.K.Kaliraj Indl. 10% 4. Sri.N.R.Manivannan HUF 10% 5. Sri.L.Kamalakannan HUF 10% 6. Smt.R.Vijaya Indl. 5% 7. Smt.K.Bama Indl. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of hearing, the assessee submitted that AOP had filed separate return for the assessment year 1995-96 in the status of AOP on 27.11.1997, which, however, was well beyond the prescribed time limit under Section 139(4) of the Income Tax Act. 5. The Assessing Officer rejected the claim of the assessee on the ground that on a harmonious reading of Sections 80 and 67A of the Income Tax, when the share income of AOP was to be included for aggregation purposes alone, the loss, which had not been determined by the Department, could not be taken advantage of Section 67A(2) of the Income Tax Act. Thus the assessee's claim was rejected. Aggrieved by this, the assessee went on appeal before the Commissioner of Income Tax (Appeals), who confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. She pointed out that Section 80 of the Income Tax Act makes reference to provisions of Sections 72(1), 73(2) and 74(3) and 74A(3) alone, whereby, the loss not determined, could not be carried forward and set off. Thus, when there is no specific reference to Section 67A therein, the question of rejecting the claim of the assessee in respect of the depreciation loss referrable to AOP does not arise. In otherwords, the relief at the hands of the member of the AOP is not dependent on the loss that the AOP may claimed or determined at the hands of the AOP. Learned counsel further submitted that the relief has to be automatic irrespective of whether the loss had been determined at the hands of the AOP or claimed by AOP in its return under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member in the income or loss of the association or body under the various heads of income has to be in the same manner in which the income or loss of the association or body has been determined under each head of income. Thus, determination of loss or income at the hands of association or body of individuals leads to the determination of the same at the hands of the member in his assessment and such determination of the share of the income of a member in the association is not left to the computation by the individual member in his return showing his share of income. Hence, the grant of relief under Section 67A of the Income Tax Act is thus dependent on the determination of the income at the hands of the association, so that the computatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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