Income-tax---

----Appeal to Appellate Tribunal---Powers of Tribunal---Assessment for 1980-81, completed at nil and no appeal against it---Appeal against assessment order for 1982-83 on the ground that Assessment Officer did not allow carry forward and set off of unabsorbed depreciation and loss- Tribunal had no jurisdiction to reopen assessment order relating to assessment year 1980-81---Indian Income Tax Act, 1961.

The assessee was a private limited company.. The Assessing Officer did not allow carry forward and set off of unabsorbed depreciation and business loss for the assessment year 1982-83. An appeal was filed by the assessee before the Commissioner (Appeals) but was unsuccessful. Against the order of the Commissioner (Appeals), the assessee filed an appeal before the Tribunal. The Tribunal after considering the matter held that as the assessment for the assessment year 1980-81 had been determined at nil and it could not be held that the unabsorbed depreciation and business loss stood set off in that year, set aside the assessment and directed the Assessing Officer to decide the matter afresh. On a reference:

Held, that the Assessing Officer completed the assessment for the assessment year 1980-81 under section 144 of the Income Tax Act 1961, after considering the brought forward losses of Rs.3,00 137. As there was no appeal against the said order, the order became final and, therefore, the Tribunal had no jurisdiction to reopen it on appeal.

G.K. Joshi for the Commissioner.

Nemo for the Assessee.

JUDGMENT

D.N. BARUAH, J--As per direction given -by this Court in Civil Rule No. 19(M) of 1991, the following two questions have been referred by the Income-tax Appellate Tribunal, Gauhati (for short, "the Tribunal), under section 256(2) of the Income Tax Act, 1961 (for short, "the Act"), for the opinion .of this Court:

"(1) Whether, under the facts and circumstances of the case and on proper construction of the provisions of section 246(1)(a) of the Income Tax Act, 1961, the order of the Assessing Officer passed under section 144 for the assessment year 1980-81 had not been final in view of the fact that the assessee had not filed any appeal against that order, especially when the Assessing Officer determined the income at nil after considering all unabsorbed depreciation and income of earlier years'?

(2) If that is so, whether there was any scope to carry forward unabsorbed depreciation and losses for the assessment year 1979-80, when these were absorbed in the ex parte assessment order for the assessment year 1980-81?"

The brief facts are that the assessee is a private limited company. The Assessing Officer, while making the assessment, did not allow carry forward and set off of unabsorbed depreciation and business loss for the assessment year 1982-83. An appeal was filed by the assessee before the Commissioner of Income-tax (Appeals). However, the assessee was unsuccessful. Against the order of the Commissioner of Income-tax (Appeals), the assessee filed yet another appeal before the Tribunal. The Tribunal after considering the matter held that as the assessment for the assessment year 1980-81 had been determined at nil, it could not be held that the unabsorbed depreciation and business loss stood set off, set aside the assessment and directed the Assessing Officer to decide the matter afresh. Against that, the Revenue had requested the Tribunal to refer the above questions which, however, was refused. Situated, thus, the Revenue filed the aforesaid Civil Rule No.19(M) of 1991 and this Court directed the Tribunal to refer the above questions. Hence the present reference.

We have heard Mr. G.K. Joshi, learned standing counsel for the Revenue. None appears on behalf of the assessee.

The Assessing Officer completed the assessment for the assessment year 1980-81 under section 144 of the Act after considering the brought forward losses of Rs.3,00,137. As there was no appeal, against the said order, the order became final and, therefore, in our opinion, the Tribunal had no jurisdiction to reopen it on appeal.

In view of the above, we answer both the questions in the negative, in favour of the Revenue and against the assessee.

A copy of this judgment under the signature of the Registrar and the seal of the High Court shall be transmitted to the Income-tax Appellate Tribunal, Gauhati.

M.B.A./4006/FCReference answered.