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TMI Blog1991 (10) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking extension of time for filing the return. There is also no evidence on record that the ITO impliedly granted time. 3. The ITO had stated in the assessment order after computing the loss that since the return has been filed after the stipulated time the net loss computed above is not brought forward to the next year. In the first appeal the CIT (Appeals) confirmed the same. The appellant is now before us in second appeal. 4. It is strenuously contended by the learned counsel for the assessee that carry forward of determined loss is his " vested right " under section 72 and the Legislature cannot by enacting section 80 take away or abridge such vested right by imposing conditions that the return of loss should be filed within the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative, Sri S.C. Sen submits that section 80 is a mandatory provision and it starts with a " non-obstante clause " and, therefore, overrides the provisions of section 72 of the Act. The appellant should have followed the law and then he would have been entitled to the benefit of section 72. The question of following rules of natural justice or giving any hearing to the appellant on his failure to comply with law is not necessary at all and the lower authorities have not committed any mistake for which the assessee can come up in appeal before the Tribunal. 6. We have heard both the parties and we feel that the appellant cannot succeed in this appeal. We do not agree with the counsel for the appellant that carry forward of determined lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only " directory ". No authority has been cited before us except the decision of the Kerala High Court reported in 191 ITR 346 wherein their Lordships have observed that the courts may in certain facts and circumstances interpret the word " shall " as being directory and not " mandatory ". As to how mandatory and directory enactments have to be construed the law has been clearly and succinctly laid down by Lord Halsbury in Article 656 to the effect that " Where a statute requires an act to be done at or within a particular time, or in a particular manner, the question arises whether the validity of the act is affected by a failure to comply with what is prescribed. If it appears that Parliament intended disobedience to render the act inval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of section 80. The ITO has simply followed the law which has been laid down and the appellant cannot find fault with the ITO for obeying the law. Even assuming for a while that the ITO had found out the causes from the appellant after hearing him for the delay in filing of the loss return yet he (ITO) could not have at that moment granted any time since further time can only be granted by the ITO before the filing of the return. Any ex post facto extension of time by the ITO during the course of assessment proceedings would have been violation of the mandatory provisions of section 80 which is not expected of an ITO being a quasi-judicial authority. We, therefore, hold that hearing or following rules of natural justice by the ITO was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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