9911796707
TMI Blog2007 (9) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... application from the side of the Revenue, the Tribunal has referred the following question under section 256(1) of the Income-tax Act, 1961 "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in directing the Assessing Officer to allow adjustment of unabsorbed depreciation and investment allowance of earlier years in spite of the fact that the return was filed late ?" 2. The facts of the case, in brief, necessary for answering the question are as under 3. The assessee is a partnership firm. Original assessment was completed under section 143(1) of the Income-tax Act, 1961. Subsequently, the Assessing Officer passed rectification order under section 154 of the Act, withdrawing the allowance of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, referred the question quoted hereinabove for answer by this court. 5. We have heard Mr. K. K. Jhunjhunwala, learned counsel appearing for the Revenue, and Mr. Binod Poddar, learned senior counsel appearing for the assessee. 6. Section 80 of the Income-tax Act reads as under: "80. Submission of return for losses.— Notwithstanding anything contained in this Chapter, no loss which has not been determined in pursuance of a return filed in accordance with the provisions of sub section (3) of section 139, 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) or sub-section (3) of section 74 or sub-section (3) of section 74A." 7. From a bare reading of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80 of the Act to provide that such loss shall not be allowed to be carried forward and a set off unless such loss is determined in pursuance of a return filed within the time allowed under section 139(1) for furnishing a voluntary return of income or within such further time as may be allowed by the Income-tax Officer. 14.3 The amendment takes effect from April 1, 1985, and will accordingly, apply in relation to any loss for the assessment year 1985-86 and subsequent years." 8. The question that falls for consideration is as to whether the losses referred to in section 80 of the Act also includes unabsorbed depreciation and investment allowance. Section 72 lays down the provisions with regard to carry forward and set off of bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reading of the provisions of section 72 and section 32, it is manifestly clear that section 72 deals with. carry forward unabsorbed business losses other than losses on account of depreciation and that is so because the carry forward of depreciation has been provided under section 32(2) of the Act. The mariner of the carry forward in the two provisions is different. 11. Considering the provisions of law referred to hereinabove, we are of the view that the Commissioner of Income-tax (Appeals) and the Appellate Tribunal have rightly arrived at a conclusion that unabsorbed depreciation and investment allowance stand on a different footing vis-a-vis unabsorbed business losses for the purpose of section 80 of the Act which specifically ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
