TMI Blog2000 (10) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Income-tax Officer to consider the assessee's claim for set off of loss suffered in the assessment year 1967-68 but which was not determined in pursuance of a return under section 139 in the proceedings for the assessment year 1974-75, in which the loss suffered was said to be set off against the deemed profit under section 41(2) ?" The factual position in a nutshell is as follows : The assessee, a private limited company was incorporated on April 16, 1962. On the basis of the returns filed by it for the assessment years 1963-64 to 1966-67, assessments were completed under section 143(3) of the Act. Though the assessee claimed to have suffered a loss of Rs. 87,853 in the assessment year 1967-68, no return was filed and no asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Reference was made to section 41(5) of the Act. The Tribunal held that section 41(2) of the Act has to be read with other provisions of the Act, more particularly section 41(5). According to it there was no necessity for filing of a return and/or computation of income to get the benefit of set-off. Though the assessee had not filed any return for the assessment year 1967-68 with the result that loss could not be deter-mined in that year, the Income-tax Officer could see the accounts for the assessment year 1967-68 and come to a conclusion whether the claim of the assessee for setting off of the loss was substantiated or justified. It was not a correct position in law to say that no loss could be allowed when the return for any particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to income-tax as income of the business or profession of the previous year in which the moneys payable for the building, machinery, plant or furniture became due : Provided that where the building sold, discarded, demolished or destroyed is a building to which Explanation 5 to section 43 applies, and the moneys payable in respect of such building, together with the amount of scrap value, if any, exceed the actual cost as determined under that Explanation, so much of the excess as does not exceed the difference between the actual cost so determined and the written down value shall be chargeable to income-tax as income of the business or profession of such previous year. Explanation.---Where the moneys payable in respect of the build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermits filing of return showing a loss so that the question of set off against profits of a subsequent year can be adjudicated. Section 143(3) as it stood at the relevant time read as follows": "143. (3) On the day specified in the notice issued under sub-section (2), or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Income-tax Officer may require on specified points, and after taking into account all relevant material which he has gathered,--- (a) in a case where no assessment has been made under sub-section (1), the Income-tax Officer shall, by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the depreciation allowance, development rebate or, as the case may be, other allowance or deduction properly allowable under this Act ; or (e) the amount of the refund as determined under sub-section (1) is greater or smaller than the amount of the refund, if any, due under this Act on a proper computation ; or (f) the status in which the assessee has been assessed under subsection (1) is different from the status in which the assessee is properly assessable under this Act ; (2) 'status', in relation to an assessee, means the classification of the assessee as an individual, a Hindu undivided family, or any other category of persons referred to in clause (31) of section 2, and where the assessee is a firm, its classification as a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a section in the beginning with a view to give the enacting part thereof in case of conflict, an overriding effect over the provision or Act mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision or the Act, mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment (see Orient Paper and Industries Ltd. v. State of Orissa, AIR 1991 SC 672 ; Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) v. K. Devi, AIR 1996 SC 1963). Section 41(5) enacts an exception to the general rule that after a business has ceased to exist, any loss relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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