9911796707
TMI Blog1982 (5) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, 1969-70, because the capital employed by the assessee out of its own funds during that year was a negative figure. In the second assessment year 1970-71 also, the assessee did not claim relief under section 80J for the same reason. In the subsequent three assessment years, namely, 1971-72, 1972-73 and 1973-74, the capital employed by it became positive, so that it was entitled to relief under section 80J at a certain percentage of such capital. Even so, the assessee did not claim relief under section 80J during these three years, because the gross total income was a negative figure in these three years. The assessee found that the gross total income was a positive figure, for the first time, during the assessment year 1976-77, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for seven years, the deduction is permissible even in a case where the formality of making a claim has not been complied with by the assessee in the first or the relevant assessment year in which, admittedly, loss had been sustained and there was no profit or gain against which the deduction could be adjusted...." Following the aforesaid decision, the Commissioner (Appeals) directed the ITO to allow the claim of the assessee. 4. The only ground taken in this appeal filed by the department is that the Commissioner (Appeals) erred in directing the ITO to allow the claim of the assessee to set off deficiencies of the earlier years. Shri L.N. Joy, learned representative for the department, urged before me that the Commissioner (Appeals) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red loss, which had been accepted while making the assessment on that basis. Since the provision is intended to provide incentive by giving relief from tax and since it permits carry forward for seven years, it seems to us that the deduction should be permissible even in a case where the formality of making a claim has not been specifically done by the assessee in the first or the relevant assessment year, in a case where admittedly loss had been sustained and there is no profit or gain against which the deduction could at all be adjusted." 6. He then referred to the decision in the case or Indian Aluminium Co. Ltd. v. CIT [1980] 122 ITR 660 (Cal.) wherein it has been held that section 80J(3) did not provide that in respect of the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciency arose. I find that in the case of Gurjargravures, it has been held ".. We are not here called upon to consider a case where the assessee failed to make a claim though there was evidence on record to support it, or a case where a claim was made out but no evidence or insufficient evidence was adduced in support...". Though the decision in the case of Gurjargravures went against the assessee, yet the above quotation shows the principle laid down by the Supreme Court as explained by the Andhra Pradesh High Court in the case of CIT v. Gangappa Cables Ltd. [1979] 116 ITR 778. In other words, the ratio in the case of Gurjargravures will not apply to two types of cases, namely, (i) a case where the assessee failed to make a claim and, (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
