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TMI Blog1998 (3) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... urn filed for the assessment year 1978-79 ? 2. Whether, on the facts and in the circumstances, the Tribunal was right in holding that the entry made by the Income-tax Officer in the order sheet for the assessment year 1978-79 would not amount to a computation and determination of the loss as per the return filed in view of the decision of the Supreme Court in Esthuri Aswathiah v. ITO [1961] 41 ITR 539 ?" The assessee filed its return of income for the assessment year 1979-80 on March 31, 1982, claiming adjustment of the loss for the assessment year 1978-79. The Income-tax Officer rejected the claim of the assessee holding that such an assessment was not made for that year and the assessee's claim for adjustment of carry forward of loss of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the Appellate Tribunal. The Appellate Tribunal concurred with the views of the Commissioner of Income-tax (Appeals) and dismissed the appeal preferred by the assessee. It is the order of the Appellate Tribunal that is the subject-matter of reference before us and the two questions of law set out earlier have been referred to us for our consideration. We hold that the view of the Tribunal that the loss for the assessment year 1978-79 could not be carried forward is correct in law. Admittedly, the return for the assessment year 1978-79 was filed by the assessee only on March 31, 1982. Under section 153 of the Act, inter alia, an order of assessment could be made within two years from the end of the assessment year in which the income b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermine the loss if there is one, Under the Income-tax Act, 1961, the assessee is entitled to, and ought to, question the amount of loss determined in an appeal preferred against the assessment order itself. The Supreme Court has further observed that the assessee need not wait till he receives the intimation under section 157 of the Act and the assessee could have very well preferred an appeal against the assessment. It is pertinent to note that the decision of this court in CIT v. Dalmia Cement (Bharat) Ltd. [1976]104 ITR 337, was reversed by the Supreme Court in CIT v. Dalmia Cement (Bharat) Ltd. [1995] 216 ITR 79. In the instant case, admittedly, the assessee had not preferred an appeal against the order lodging the return for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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