COMMISSIONER OF INCOME-TAX VS DEVSHREE VIPANAN SAHAKARI SANSTHA LTD.
1999 P T D 864
[225 I T R 654]
[Madhya Pradesh High Court (India)]
Before A. R. Tiwari and N. K. Jain, JJ.
COMMISSIONER OF INCOME-TAX
Versus
DEVSHREE VIPANAN SAHAKARI SANSTHA LTD.
Miscellaneous Civil Case No.338 of 1992, decided on 22/03/1996.
Income-tax---
----Reference---Loss---Carry forward and set off---Return not filed within time prescribed under S.139(l)---Assessing Officer denying carry forward of loss---Tribunal holding that assessee was entitled to carry forward or losses---Justified---No question of law arises---Indian Income Tax Act, 1961, Ss. 139(l) & 256(2).
The assessee filed a return of income showing loss. On the ground that the return was not filed within time prescribed under section 139(1) of the Income Tax Act, 1961, the Assessing Officer denied carry forward of the loss. On appeal, the Commissioner of Income-tax (Appeals) permitted the carry forward of the loss. The Tribunal dismissed the appeal of the Revenue. On an application to direct reference:
Held, dismissing the application; that the questions proposed in the application stood concluded by the decisions in C.I.T. v. Kulu Valley Transport Co. P. Ltd. (1970) 77 ITR 518 (SC) and Cooperative Marketing Society Ltd. v. C.I.T. (1983) 143 ITR 99 (MP). The Tribunal had rightly held that the assessee was entitled to carry forward of losses though the return was belated. No question of law arose from its order.
C.I.T. v. Kulu Valley Transport Co. P. Ltd. (1970) 77 ITR 518 (SC) and Cooperative Marketing Society Ltd. v. C.I.T. (1983) 143 ITR 99 (MP) fol. .
D. D. Vyas for the Commissioner.
Nazir Singh for the Assessee.
JUDGMENT
A. R. TIWARI, J.---The applicant (Commissioner of Income-tax, Bhopal) has filed this application under section 256(2) of the Income Tax Act, 1961 (for short "the Act"), seeking a direction to the Tribunal to state the case and to refer the proposed question of law after rejection of the application registered as R.A. No.441/Ind of 1991 for the assessment year 1984-85 on January, 10,. 1992, arising out of the order, dated February 22, 1991, passed by the Tribunal in I.T.A. No.995/Ind of 1985, for our consideration and opinion:
"Whether, on the facts and in the circumstances of the case and on interpretation of the relevant provision of the statute, the Income-tax Appellate Tribunal was justified in holding that the assessee was entitled to carry forward of losses though the return was belated?"
Briefly stated, the facts of the case are that the assessee submitted the return of income showing loss of Rs.2,39,860 on October 23, 1984. As the return was not filed within time prescribed under section 139(1) of the Act, the Assessing Officer denied carry forward of the loss. In appeal the Commissioner of Income-tax (Appeals) placed reliance on C.I.T. v. Kulu Valley Transport Co. P. Ltd. (1970) 77 ITR 518 (SC) and permitted the carry forward of the loss. Aggrieved, the Department filed the appeal before the Tribunal. The Income-tax Appellate Tribunal placed reliance on Cooperative Marketing Society Ltd. v: C.I.T. (1983) 143 ITR 99 (MP), and dismissed the appeal as meritless. The Department then filed an application under section 256(1) of the Act, which was rejected. Thereafter the applicant has filed this application under section 256(2) of the Act.
We have heard Shri D. D. Vyas, learned counsel for the applicant/Department, and Shri Nazir Singh, learned counsel for the non-?applicant/assessee.
We find that the Tribunal declined to state the case and to refer the question on the ground that the point in issue was squarely covered by a decision in Cooperative Marketing Society Ltd. v. C.I.T. (1983) 143 ITR 99 (MP). Moreover the aforesaid point also stands concluded by the decision in C.I.T. v. Kulu Valley Transport Co. P. Ltd. (1970) 77 ITR 518 (SC) and is also sustainable on Board's Circular No. FC 211 of September 8, 1970.
It is thus clear that the question proposed in this application stands concluded by the aforesaid decisions. Nothing substantial is urged to take a different view in the matter.
In the result, we find that there is no referable question of law and ?`i' accordingly this application deserves the fate of dismissal.
Consequently, we reject this application but without any order as to costs.
Counsel fee for each side is, however, fixed at Rs.750 if certified.
C.M.A./1755/FC???????????????????????????????????????????????????????????????????????????????? Application rejected.