TMI Blog2011 (10) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... and justice. - The provisions of section 72A(4) are clear and there is no ambiguity and, therefore, question of applying the principle of casus omisus will not apply. Therefore, we are unable to agree with the arguments of the ld. AR of the assessee that 'deficiencies' could be filled up by applying the principle of casus omisus. Deduction u/s 80P - the assessee is engaged in the business of supply/manufacture of milk products and, therefore, the assessee's activities are not covered in clause (a) or clause (b) of section 80P(2) of the Act. The assessee is also not a consumers' Co-op. Society. Therefore, the assessee's case falls in residuary sub-clause (ii) of clause (c) of section 80P(2) of the Act. Therefore, the income of the assessee society attributable to the activity of supplying milk/manufacture of milk products will be eligible for deduction of Rs. 50,000/- from profits and gains attributable to such activities. - Decided partly in favor of assessee and partly in favor of revenue. - ITA Nos. 416 & 417 (Delhi) of 2009 - - - Dated:- 21-10-2011 - Shri U.B.S. Bedi, And Shri K.D. Ranjan, JJ. Represented By:- Shri K. Sampath and Raj Kumar for the Appellant. Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had been set off from this loss. In the computation of income in the revised return, it had declared brought forward losses of Rs. 49,64,627/- for the financial year 2002-03 and set off the income of Rs. 5,40,490/- against this income and the balance loss of Rs. 44,24,137/- had been carried forward by the assessee society. The assessing officer enquired into the justification of the claim of brought forward loss of Rs. 49,64,627/- claimed in the revised return filed. 3.2 It was submitted by the assessee that as per resolution No. 9/2003/05-06 dated 24/03/2003, carry forward of loss of parent Society, M/s Gurgaon Rohtak Milk Producers Ltd. were shared by the two new societies, in their designated ratios as provided in the resolution. However, the assessing officer was not convinced with the reply of the assessee on the ground that the assessee did not furnish any basis/rule/law under Income Tax Act under which loss at the time of splitting of the society could be carried forward and would be adjusted against the income of the newly formed society. There was no provision under which loss from old society after its bifurcation would be adjustable against the newly formed society's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the merger or de-merger of the society under the Income Tax Act, 1961. The provisions of section 72A of the I. T. Act, 1961 are quite specific in the case of companies. The ld. AR had pleaded for a beneficial and natural interpretation of law on parity and equity with that of the companies, by relying upon various judgements as above. However, I do not concur with the ld. AR's contention in this regard. When there is no specific provision/rule/law under the Income Tax Act as the AO has correctly argued, regarding the adjustment of losses after the bifurcation of the societies, neither there is any precedent set up either by courts on this issue one cannot interpolate or import into the Act what is not specifically inserted therefor the persons of this nature, even though the appellant is assessed under section 231 of the I. T. Act, 1961 as an assessment unit. Thus, one cannot read into the Act the material which is not there, even though the logic/analogy by the ld. AR as given to the case of a company under section 72A of the I. T. Act, 1961. Therefore, the assessing officer's action in disallowing the brought forward or carry forward of losses in both the years is uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society has come into existence by re-organization and not by inheritance. Therefore, there is no question of application of provisions of section 78(2) of the Act. Since there is no specific provision under the Income Tax Act, adjustment of brought forward losses cannot be allowed. She further submitted that there is no ambiguity in the provisions of law and, therefore, applying the principle of casus-omisus cannot be applied. She accordingly submitted that brought forward losses of parent society could not be set off against the income of the assessee. 7. We have heard both the parties and gone through the material available on record. Under section 78(2) right to carry forward and set off losses belong to a person, who suffered the loss and not to a different person. Section 78(2) elaborates the general rule and provides that even in cases where a person carrying on business or profession has been succeeded in such capacity by another person otherwise then by inheritance, another person will not have the right to carry forward un-absorbed business loss of first person and set off the same against the second person's income in a subsequent year. Hon'ble Karnataka High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes to disallowance of deduction under section 80P of the Act. The assessing officer had not allowed deduction under section 80P on the ground that the same was not claimed in the returns of income in both the years. Before the ld. CIT (Appeals) it was submitted that the assessee had not claimed deduction under section 80-P in the returns of income, but the assessee should have been allowed as it was a statutory deduction available to every co-operative society. In the cases where a deduction is wrongly or incorrectly claimed, the AO has power to deny the claim of deduction. Similarly, where the deduction inadvertently is not claimed, the assessing officer must allow the same suo moto. The ld. AR of the assessee, therefore, pleaded that deduction under section 80P should be allowed as per the provisions of law. The ld. CIT (A) observed that the claim of deduction under section 80P can be allowed if the conditions and activities mentioned in the section are fulfilled by the assessee society. He noted that the assessee's case does not fall in any of specified activities in sub-sections (2)(a) and (2)(b) of section 80P of the Act. The ld. CIT (Appeals) did not find the activities of t ..... 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