TMI Blog2014 (5) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee society could not have got the benefit of carrying forward losses of the erstwhile societies which were not in existence during the relevant Assessment Year – Decided against Assessee. - Civil Appeal No. 3880 of 2003 - - - Dated:- 29-4-2014 - Anil R. Dave And Shiva Kirti Singh,JJ. JUDGMENT Anil R. Dave, J. 1. Being aggrieved by the judgment delivered on 19th September, 2002 in Income Tax Appeal No.19 of 2001 by the High Court of Judicature of Rajasthan, Jaipur Bench, this appeal has been filed by the assessee, which is a co-operative society. When the appeal was called out for hearing, none had appeared for the appellant co-operative society. Upon perusal of the record, we found that the learned advocate who had appeared earlier had become a senior counsel. In the circumstances, we had requested his colleague to appear in the matter but he had shown his reluctance to appear for the appellant society, especially in view of the fact that though more than two letters had been addressed to the appellant society for sending vakalatnama or for making appropriate arrangement for its appearance in this Court, the appellant society had not even cared to reply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment orders, appeals were filed before the CIT (Appeals) and the CIT (Appeals) dismissed the said appeals. Further appeals were filed before the Income Tax Appellate Tribunal but the Tribunal also dismissed the appeals. 4. Being aggrieved by the common order passed by the Tribunal, the appellant filed Income Tax Appeal No.19 of 2001 before the High Court of Rajasthan and the said Income Tax Appeal was also dismissed and therefore, the appellant has approached this Court by way of the present appeal. 5. The learned counsel appearing for the appellant society had submitted that the assessing officer and the authorities below, confirming the view taken by the assessing officer, are not correct for the reason that upon amalgamation of the aforestated four co-operative societies into the appellant society, by virtue of the provisions of Section 16(8) of the Rajasthan Co-operative Societies Act, rights and obligations of the societies so amalgamated would not be affected and therefore, all the rights which the societies had with regard to carrying forward of their losses would continue, and as the said societies had been amalgamated into the appellant society, the appellant soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court were absolutely correct and therefore, the impugned judgment did not require any interference. It had been submitted by him that the registration of the amalgamating societies had been cancelled upon the amalgamation and as they were not in existence at the time when the appellant society was assessed, there was no question of carrying forward accumulated losses of the amalgamating societies and adjusting them against the profits of the appellant society. 11. He had drawn our attention to the provisions of Section 72 and 72A of the Act. He had further submitted that upon conjoint reading of Section 72 and 72A of the Act, it is clear that the co-operative societies cannot get the benefit of carrying forward and setting off accumulated losses if the said societies were not in existence. Only in case of a company , the benefit of set off could be availed by an amalgamated company, if the amalgamating company had accumulated losses which could have been carried forward and adjusted against the profits of the amalgamated company in accordance with the provisions of the Act. 12. So as to substantiate his submissions, he had relied upon judgments delivered in the case of Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get any benefit. The losses were suffered by the societies which were in existence at the relevant time and their existence or legal personality had come to an end upon being amalgamated into another society. 17. The normal principle is that a non-existent person cannot file an income tax return and therefore, cannot carry forward its losses after its existence comes to an end. All those four societies, upon their amalgamation into the appellant society, had ceased to exist and registration of those societies had been cancelled. In the circumstances, those societies had no right under the provisions of the Act to file a return to get their earlier losses adjusted against the income of a different legal personality i.e. the appellant society. 18. So far as companies are concerned, there is a specific provision in the Act that upon amalgamation of one company with another, losses of the amalgamating companies can be carried forward and the amalgamated company can get those losses set off against its profits subject to the provisions of the Act. This is permissible by virtue of Section 72 A of the Act but there is no such provision in the case of co-operative societies. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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