1983 (11) TMI 123 - AT - Income Tax

Issues Involved:

1. Validity of invoking Section 147(a) of the Income-tax Act, 1961.
2. Validity of notices issued under Section 148.
3. Classification of the return filed on 12-3-1979.
4. Carry forward of determined loss.
5. Overall legality of the Commissioner (Appeals)' order.

Detailed Analysis:

1. Validity of Invoking Section 147(a):

The assessee contended that the Commissioner (Appeals) was not justified in holding that the ITO had reason to believe that income had escaped assessment due to the failure of the assessee to file a return for the assessment year 1976-77. It was argued that the ITO had no evidence to form a reasonable belief that income had escaped assessment. The Tribunal found that the ITO's belief was not bona fide as he had ample evidence showing a loss for the relevant year. The ITO's mere opinion that income had escaped assessment without substantial evidence was deemed invalid. Therefore, the invocation of Section 147(a) was not in accordance with law.

2. Validity of Notices Issued Under Section 148:

The assessee argued that the notices under Section 148 were invalid. The Tribunal noted that the ITO issued a notice under Section 148 on 11-7-1977, based on the assumption that income had escaped assessment. However, the ITO had no substantial evidence for this belief. The Tribunal concluded that the notices were non est in law due to the lack of a bona fide reason for the belief that income had escaped assessment. Consequently, the assessee was not obliged to file a return in response to these invalid notices.

3. Classification of the Return Filed on 12-3-1979:

The assessee claimed that the return filed on 12-3-1979 was under Section 139(4) and not in response to any notice under Section 148. The Tribunal agreed, noting that the return was filed within the time allowed under Section 139(4)(b)(iii), which permits filing before the end of the assessment year. The Tribunal emphasized that the ITO did not issue any notice under Section 139(2) before the end of the relevant assessment year. Therefore, the return filed on 12-3-1979 was valid under Section 139(4) and not in response to the invalid notices under Section 148.

4. Carry Forward of Determined Loss:

The assessee argued that the ITO erred in not allowing the carry forward of the determined loss. The Tribunal held that since the return filed on 12-3-1979 was valid under Section 139(4), the ITO was bound to determine the true total income, including the loss, and allow it to be carried forward. The Tribunal referred to the Supreme Court's judgment in Kulu Valley Transport Co. (P.) Ltd., which held that a return filed within the time specified under Section 139(4) is valid and must be considered for loss determination and carry forward. Therefore, the ITO's refusal to allow the carry forward of loss was incorrect.

5. Overall Legality of the Commissioner (Appeals)' Order:

The Tribunal found that the Commissioner (Appeals) erred in upholding the ITO's order. The Tribunal noted that the ITO's assessment was labeled as under Section 148/143(3), but since the notices under Section 148 were invalid, the assessment should be treated as under Section 143(3) only. Consequently, the ITO was required to determine and allow the carry forward of the loss. The Tribunal set aside the Commissioner (Appeals)' order and directed the ITO to modify his assessment, allowing the carry forward of the determined loss of Rs. 22,27,449 along with depreciation.

Conclusion:

The appeal was fully allowed, with the Tribunal directing the ITO to treat the assessment as under Section 143(3), delete the observations regarding the assessment being made in response to notices under Section 148, and allow the carry forward of the determined loss and depreciation in accordance with law.

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