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TMI Blog2014 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... al is right in law in holding that the depreciation loss from the WEG arises to an AOP and the portion of the said loss attributable to the appellant cannot be allowed as a set off against appellant's income, on the ground that no return has been filed by the AOP and the appellant's loss determined? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the depreciation loss or share thereof cannot be set off against the income of the appellant?" 2. The assessee, a member of association of persons (AOP) with six other parties, entered into a joint venture on 01.08.1994 to put up a wind energy generator in the name of M/s.Renuga Wind Energy Farm in areas specified by the Tamil Nad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn filed on 27.02.1997, the assessee claimed loss from windmill under the head "income from other sources" and the share of loss was to the tune of Rs.16,12,752/-. After set off of this loss against other incomes, he carried forward an unabsorbed depreciation to the tune of Rs.13,51,643/-. The assessee supported his claim as per Section 67A(2) of the Income Tax Act. In the course of hearing, the assessee submitted that AOP had filed separate return for the assessment year 1995-96 in the status of AOP on 27.11.1997, which, however, was well beyond the prescribed time limit under Section 139(4) of the Income Tax Act. 5. The Assessing Officer rejected the claim of the assessee on the ground that on a harmonious reading of Sections 80 and 67A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was dismissed. Aggrieved by this, the present Tax Case (Appeal) has been filed. 7. Learned counsel appearing for the assessee took us through Section 67A(2) of the Income Tax Act and pointed out that in the absence of any reference to Section 67A in Section 80, the question of rejecting the claim of the assessee for carry forward and set off of loss does not arise. She pointed out that Section 80 of the Income Tax Act makes reference to provisions of Sections 72(1), 73(2) and 74(3) and 74A(3) alone, whereby, the loss not determined, could not be carried forward and set off. Thus, when there is no specific reference to Section 67A therein, the question of rejecting the claim of the assessee in respect of the depreciation loss refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or loss of the association or body, as computed under sub-section (1), shall, for the purposes of assessment, be apportioned under the various heads of income in the same manner in which the income or loss of the association or body has been determined under each head of income." 9. As is evident from the reading of Sub-Section, the apportioning of the share of a member in the income or loss of the association or body under the various heads of income has to be in the same manner in which the income or loss of the association or body has been determined under each head of income. Thus, determination of loss or income at the hands of association or body of individuals leads to the determination of the same at the hands of the member in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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