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TMI Blog2001 (4) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - - Dated:- 9-4-2001 - Judge(s) : ARIJIT PASAYAT., D. K. JAIN. JUDGMENT The judgment of the court was delivered by ARIJIT PASAYAT C.J.- The following question has been referred for the opinion of this court under section 256(1) of the Income-tax Act, 1961 (in short "the Act"), by the Income-tax Appellate Tribunal, Delhi Bench-B, Delhi, (in short "the Tribunal"): "Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in allowing the carry forward of the loss of Rs. 1,08,364?" The dispute relates to the assessment year 1976-77. The factual position needs to be noted in brief, as factual controversy has very little role to play in the adjudication of the case. The assessee, a private l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to him carry forward and set off stand on a different footing from determination and even if there is determination of the loss, the same is not to be carried forward unless the provisions of section 139(3) are complied with. According to learned counsel for the assessee, on the other hand, the position was different prior to April 1, 1987, and a bare reading of section 80 as it stood at the relevant point of time clearly indicates the position. According to him the ratio in Kulu Valley Transport Co. P. Ltd.'s case [1970] 77 ITR 518 (SC) has been rightly applied. It is to be noted that the decision in Kulu Valley Transport Co. P. Ltd.'s case [1970] 77 ITR 518 (SC) was rendered in the background of section 22 of the Indian Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g voluntary filing of a return showing loss. Section 80 of the Act has undergone various changes. The said section as it stood at the relevant point of time read as follows: "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 under 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) of section 74." Subsequently, the provision was amended with effect from April 1, 1985. The expression "under section 139" was substituted by the expression "within the time allowed under sub-section (1) of section 139 or within such further time as may be allowed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 72 or sub-section (2) of section 73, or sub-section (1) of section 74, he may furnish, within the time allowed under sub-section (1) a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1)" By the Taxation Laws (Amendment) Act, 1970, the expression "or within such further time which, on an application made in the prescribed manner, the Income-tax Officer may, in his discretion, allow" was added after the expression "within the time allowed under sub-section (1)". Subsequently by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986, changes wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to above was omitted and in its place the expression "by the thirty first day of July of the assessment year relevant to the previous year during which the loss was sustained" was substituted. By the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989, two portions were omitted from subsection (3) of section 139. After the omission the provision read as follows: "139. (3) If any person who has sustained a loss in any previous year under the head 'Profits and gains of business or profession' or under the head 'Capital gains' and claims that the loss or any part thereof should be carried forward 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect Tax Laws (Amendment) Act, 1987, the expression "in accordance with the provisions of sub-section (3) of section 139" was inserted under the Act, the necessity of public notice as was required under section 22(1) of the 1922 Act has been taken away. A statutory obligation has been placed on every person whose total income exceeds the taxable limits to file a return within the period prescribed under sub-section (1) of section 139 or the period extended by the Income-tax Officer. Section 139(3) as was originally enacted involved a departure from the provision of section 22(2A) of the 1922 Act to the extent that return of loss under the old section could have been made either within the time prescribed by sub-section (1) of section 22 or w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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