TMI Blog1971 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... are not in dispute. The assessee filed a return out of time showing a loss of Rs. 19,427-11-3. The Income-tax Officer passed the following order: " The return showing loss of Rs. 18,427-11-3 submitted by you on July 10, 1961, for the assessment year 1960-61 has been filed by me as out of time. " The result of this order was that the Income-tax Officer refused to permit the assessee to carry forward the loss of this year into his return for the next year. Although the language of the order is merely filing the return, it is quite clear that the order has been passed filing the return after knowing that the return is one of loss and that there would be, no revenue out of it. This clearly showed that the Income-tax Officer wanted to shake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect of refusing to permit the assessee the benefit of carrying forward his loss. If the Income-tax Officer had performed his duty of assessing the loss on the return filed he could have brought about that effect only by assessing the loss as nil. In law every officer must be deemed to perform his duty according to law. By this order the Income-tax Officer having come to know that the return was one of loss applied his mind to the facts of the case superficially and came to the conclusion that the assessee should not be permitted to carry forward this loss and to bring about that effect he passed an order that because the return had been filed beyond time, therefore, the whole proceedings should be dropped. The shelter behind the filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as out of time ' was an appealable order. " Costs of this reference will be borne by the parties as incurred. BHAVE J.- I agree that the question referred to us should be answered in the manner proposed by my Lord the Chief Justice. I would, however, like to add a few words. The assessee filed a return showing loss but beyond the time prescribed under section 22(2A) of the Indian Income-tax Act, 1922. The Income-tax Officer thereupon passed an order to the effect: " The return showing loss of Rs. 18,427-11-3 submitted by you on July 10, 1961, for the assessment year 1960-61 has been filed by me as out of time. " The appeals preferred by the assessee to the Appellate Assistant Commissioner and the Income-tax ' Tribunal were reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. P. Ltd., wherein the majority view was expressed to the effect that a return filed under section 22(2A) was,like any other return filed under other provisions of section 22 and even if it was filed beyond the time prescribed, an Income-tax Officer was under obligation to consider it if it was filed before the assessment order was passed, that being the effect of section 22(3) of the Act. This decision, therefore, makes it clear that the Income-tax Officer is bound to consider the return even if it is filed late and is bound to pass an order one way or the other, that is, accepting the full loss claimed or determining the loss at any other figure deemed proper by him. If the Income-tax Officer passes an order on misapprehension of law of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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