9911796707
TMI Blog1987 (4) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... d by it during the assessment year 1957-58 on sale of shares to three associate concerns. It was maintained by the assessee that the loss was sustained in the previous year relevant to the assessment year 1957-58 and the same should beset off against the capital gains in the assessment year in question. The Income-tax Officer disallowed the claim for set off on the footing that when in the assessment year 1957-58 the loss was claimed, it was excluded in the computation of income as capital loss and the Appellate Assistant Commissioner while disposing of the assessee's appeal had stated that it was a notional capital loss. As no further appeal was carried by the assessee, with the first appellate order the matter had become final. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instance of the Revenue, four questions were referred for the opinion of the High Court : " 1. Whether, on the facts and in the circumstances of the case, the Income-tax Officer's order for the assessment year 1957-58 had not merged in the Appellate Assistant Commissioner's order in which the Appellate Assistant Commissioner had given a clear finding that the loss was notional ? 2. If the answer to the above question is in the negative, whether any loss could be said to have been determined for the assessment year 1957-58, which could be carried forward to subsequent years ? 3. Whether, in view of the provisions of section 80 of the Income-tax Act, 1961, the loss claimed for the assessment year 1957-58 could be set off again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer as also the. Appellate Assistant Commissioner had found that the loss was a capital loss. The High Court further found: " In our opinion, this section (section 80 of the 1961 Act) cannot apply to a case where in law a return could not have been filed under section 139. That is to say in relation to assessment years prior to the coming into force of the Income-tax Act, 1961, a return could not possibly have been filed under section 139 because in these years this section was not on the statute book. But if section 80 is construed to mean that a return filed under the Indian Income-tax Act, 1922, is also within its purview, then, in our opinion, the requirement of this section was equally fulfilled because the assessee has for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than eight years ...... (3) When, in the course of the assessment of the total income of any assessee, it is established that a loss of profits or gains has taken place which he is entitled to have set off under the provisions of this section, the Income-tax Officer shall notify to the assessee by order in writing the amount of the loss as computed by him for the purposes of this section." The High Court has found that the Income-tax Officer did compute the amount by specifying it in his assessment order. When the assessee had made the claim and he took note of it, his failure to comply strictly with the requirement of sub-section (3) of section 24 should not be permitted to be taken advantage of by the Revenue, nor should it be used to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee not being a company, the net loss computed in respect of such capital assets for any assessment year does not exceed five thousand rupees, it shall not be carried forward under this section. (b) Notwithstanding anything contained in the Indian Income-tax Act 1922 (11 of 1922), any loss computed under the head 'Capital gains' in respect of the assessment year commencing on the 1st day of April, 1961, or any earlier assessment year which is carried forward in accordance with the provisions of sub-section (2B) of section 24 of that Act, shall be dealt with in the assessment year commencing on the 1st day of April, 1962, or any subsequent assessment year as follows: (i) in so far as it relates to short-term capital assets, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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