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TMI Blog2003 (9) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1995-96 claiming total loss of Rs. 11,78,901.92 which includes depreciation amount of Rs. 1,59,146. The assessing authority allowed the assessee to carry forward the loss to the extent of Rs. 1,59,146 as depreciation for subsequent years. The assessing authority did not allow the petitioner to carry forward the loss to the extent of Rs. 10,19,755.82 in terms of the amendment. The petitioner in these circumstances is before me seeking for the above referred prayers. The petitioner in W.P. No. 32321 of 2001 is seeking the same prayer as in earlier case. The petitioner in this case filed his return in terms of the Act for the assessment year 1997-98. He declared a net loss of Rs. 1,63,362. The loss declared was after claiming set off of the unabsorbed loss of earlier years 1996-97 to the tune of Rs. 2,01,947 besides unabsorbed depreciation allowance for the assessment years 1995-96 and 1996-97. The set off of loss and unabsorbed depreciation claimed were allowed by the assessing authority while concluding the assessment under section 19(3) of the Act. Subsequently, a notice under section 37 of the Act was issued to withdraw the set off of the loss claimed for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the petitioner has made out a case or not. The agricultural Income-tax Act provides for levy of agricultural incometax in the State of Karnataka. It provides for detailed procedure in the matter of levy of tax. Section 15 before amendment read as under: "15. Carrying forward of loss.--Where any person sustains a loss in agricultural income in any year, the loss shall be carried forward to the following year and set off against the agricultural income for that year and if it cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following year and so on, but no loss shall be carried forward for more than six years: Provided that, in the case of loss sustained before the commencement of this Act, this section shall apply only to such loss as was sustained in the previous year immediately before such commencement: Provided further that no loss, which has not been determined in pursuance of a return filed under section 18 shall be carried forward and set off under this section: Provided also that where depredation allowance is also to be carried forward under proviso (2) to clause (e) of section 5, effect shall first be given to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s section 15 and not section 18. This court after noticing sections 15 and 18 ruled that a perusal of the scheme of the provision would make it clear that if the assessee had filed a return and that return is sought to be modified by filing another return and the later return though not within the time allowed by the Act, but such return having been filed before the assessment is complete, definitely the decision of the Supreme Court in CIT v. Kulu Valley Transport Co. P. Ltd. [1970] 77 ITR 518, has to be applied. This court ruled that the language of section 15 and section 18 is in pari materia with the provisions of the Act and that therefore it must be held that the petitioner is entitled to carry forward the loss. The time restriction in terms of section 18 was not accepted by this court. The judgment of this court is based on the judgment of the Supreme Court in the case of CIT v. Kulu Valley Transport Co. P. Ltd. [1970] 77 ITR 518. In the said case, the Supreme Court has noticed section 24(2) and section 22(2) of the Act. After noticing these two sections the Supreme Court has ruled as under: "Now, the question which was submitted for the opinion of the High Court, in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be overlooked that even if two views are possible the view which is favourable to the assessee must be accepted while construing the provisions of a taxing statute." The Supreme Court did not accept the contention that the return is to be filed within time. Following the said judgment of the apex court, this court ruled that the return can be filed at any time in terms of section 15, and section 18 has no application in the earlier case. The second judgment in W.P. No. 41464 of 1996 is nothing but following the decision in W.P. No. 149 of 1994. Therefore it cannot be said that the amendment is effected to cure the defect as pointed out by this court. This court did not point out any lacuna and, on the other hand, this court only noticed both the provisions and interpreted the law as it stood then in the light of the judgment of the apex court. Therefore, the contention of the respondent that the amendment is effected to cure the lacuna cannot be accepted on the facts of this case. This court in W.A. No. 3798 of 1999 considered the issue of retrospective amendment in para. 28 and ruled that the retrospective amendment must not be only for the purpose of nullifying a judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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