TMI Blog1973 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Officer, by his order dated 30th March, 1963, held that the assessee's claim to get the loss determined was barred by limitation prescribed under section 22(2A) of the Indian Income-tax Act, 1922, and that the same could not be revived when a notice under section 22(2) was issued. The Income-tax Officer further held that there was no further obligation on him to complete the assessment in such an event. The Income-tax Officer dropped the proceedings. Against the order of the Income-tax Officer the assessee appealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed the appeal holding : " Section 30(1) does not provide for an appeal where the Income-tax Officer has failed to pass an order even though his refusal to pass an order may not be in accordance with law. No appeal is provided for against the Income-tax Officer's action." Against the order of the Appellate Assistant Commissioner the assessee preferred a further appeal to the Appellate Tribunal. The contention urged on behalf of the assessee before the Tribunal was that as the assessee had already been served with a notice under section 22(2), section 22(2A) did not apply, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be noted that most of these decisions relate to orders passed in execution proceedings and the court had to consider the nature and effect of the orders passed in such execution proceedings and in considering such orders the court had relied on the substance of the order and not on the mere form in which the order was made. Mr. Dutt has next contended that the provisions relating to right of appeal should be construed liberally. In support of this construction Mr. Dutt has relied on the following decisions : Sir Hukumchand Mannalal Co. v. Commissioner of Income-tax Gopi Lal v. Commisioner of Income-tax and Mohan Lal Khemka v. Commissioner of Income-tax . Mr. Dutt has argued that though the order of the Income-tax Officer in form purports to be an order dropping the proceeding, the order of the Income-tax Officer in effect and in substance adjudicates upon the claim of the assessee regarding loss and adjudicated the said loss to be nil. Mr. Dutt has contended before us that the Income-tax Officer could not have ignored the return filed by the assessee though beyond time and it was the duty of the Income-tax Officer to make the assessment of the said year and to compute the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, that arises is what exactly is the true construction of the order. On a true construction of the order passed by the income-tax Officer we are of the opinion that by the said order the Income-tax Officer did not reject the claim of the assessee with regard to the loss suffered by him and by his said order the Income-tax Officer has only chosen not to determine the amount of loss on the ground that the return was filed beyond time. Mr. Sen has rightly contended that in the instant case we are not concerned with the correctness or otherwise of this order of the Income-tax Officer. The only question that requires to be considered is whether as a result of this order by the Income-tax Officer the assessee has been deprived of his right to have the loss determined and to get the benefit of his loss in any subsequent years. If the effect of the order of the Income-tax Officer cannot deprive the assessee of any such right and only amounts to his refusal to determine the amount of loss in the year on the ground that the return was filed beyond the prescribed period there will not be any determination of the question of loss and naturally there will be no computation of any amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchhoddas Karsondas. In this case the Supreme Court considered the cleavage of opinion between the Bombay High Court on the one hand and the Calcutta High Court on the other and the Supreme Court upheld the view taken by the Bombay High Court. In the case of Commissioner of Income-tax v. Kulu Valley Transport Co. P. Ltd., the Supreme Court by its majority view held that section 24(2) confers the benefit of losses being set off and carried forward and there is no provision in section 22 under which losses have to be determined for the purpose of section 24(2) and that section 22(2A) simply says that in order to get the benefit of section 24(2) the assessee must submit his loss return within the time specified by section 22(1) and that this provision must be read with section 22(3) for the purpose of determining the time within which a return has to be submitted. The majority view of the Supreme Court was that it can well be said that section 22(3) is merely a proviso to section 22(1) and the Supreme Court further held that a return submitted any time before assessment is made is a valid return. Grover J., delivering the judgment on behalf of the majority of the Bench, has observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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