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TMI Blog2005 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to the benefit of carry forward and set off of accumulated losses?" The assessment year is 1983-84 and the relevant accounting period is the year ended on June 30,1982. The assessee, a limited company, claimed set off and carried forward of certain business losses which came to be disallowed by the Assessing Officer. The assessee carried the matter in appeal before the Commissioner (Appeals) who confirmed the same. Hence, the matter was carried in the second appeal before the Tribunal. The Tribunal, vide order dated January 9, 1992, has allowed the assessee's appeal. The assessee-company was manufacturing cloth from yarn and then selling the same in the market. During the year under consideration the entire textile unit was so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court in the case of B.R. Ltd. v. V.P. Gupta, CIT [1978] 113 ITR 647. That the Tribunal had recorded a finding that the assessee was having common management and common control of business viz. there was unity of control. That the Tribunal had further found that whether the assessee manufactured the cloth itself or purchased the manufactured cloth would not make any difference and instead of processing the cloth itself if it got the same printed by way of job work and sold the same in the market the business would remain the same and, therefore, the order of the Tribunal requires to be upheld. In rejoinder Mr. Bhatt invited attention to the portion of the judgment of the Madras High Court in the case of Tube Suppliers Ltd. v. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame business depends essentially on the facts of each particular case, yet it is a mixed question of law and fact and the tests laid down by various decisions have to be applied to the facts found by the Tribunal. In the judgment rendered by the apex court in B.R. Ltd. [1978] 113 ITR 647 though the controversy brought before the court related to the provisions of section 24(2) of the Indian Income-tax Act, 1922, prior to its amendment by the Finance Act, 1955, the apex court has categorically stated that "even under the amended provision, the consideration whether in the year of profit the assessee was carrying on the same business which he was carrying on in the year in which the unabsorbed loss occurred is not irrelevant. Indeed, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be seen that the Tribunal has recorded that the assessee had common management and common control of business. That there was no difference in the business carried on by the assessee in two different accounting periods considering the unity of control. Nothing has been pointed out on behalf of the applicant-Revenue to even suggest that these findings of fact recorded by the Tribunal are not correct, except for making a faint effort that the Tribunal had not found that there was common place of business. As can be seen from the facts on record the decision in the case of B.R. Ltd. [1978] 113 ITR 647 (SC) had been pressed into service on behalf of the assessee even before the Commissioner (Appeals) as well as the Tribunal. None of the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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