TMI Blog1997 (10) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... 1987, claiming an aggregate loss of Rs. 1,39,631 comprising of Rs. 1,11,248, being loss carried forward from the previous asst. yr. 1986-87, unabsorbed depreciation for the relevant year Rs. 23,118 and share of loss from other partnerships Rs. 5,266. It is further stated that the petitioner also claimed that the aggregate loss of Rs. 1,39,631 be carried forward to the following assessment year to be set off against the income, if any, of such year, evidenced by Exts. P-2 and P-2(a). It is stated that though the petitioner was entitled to carry forward the unabsorbed depreciation and investment allowance, the second respondent did not pass any assessment order on the returns filed for the years 1986-87 and 1987-88. It is also stated that subsequently for the asst. yr. 1988-89 the petitioner filed his return before the second respondent on 29th July, 1988, returning an aggregate loss of Rs. 2,68,703 comprising of business loss for the year 1988-89 Rs. 1,29,072 and loss carried forward from the asst. yr. 1987-88 Rs. 1,39,631. It is stated that the petitioner also claimed that such aggregate loss should be carried forward to the following assessment year to be set off against the incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond respondent has dealt with the merits of the matter relating to the claim in respect of the asst. yr. 1986-87 made in the return in para 7 of the counter-affidavit and submitted that the said claim does not appear to be correct. In para 8 of the counter-affidavit it is stated that the petitioner's contention that the ITO did not pass any assessment order on the returns filed for the asst. yr. 1986-87 and 1987-88, is not correct and that the ITO had completed the assessment for the year 1986-87 under s. 143 (1) on 29th Jan., 1988, as "closed as ND" and entered in the D C register as II(11)(a)/235/87-88. It is stated that there is no specific noting as to whether the loss has been allowed to be carried forward or not. It is further stated that the assessment for the year 1987-88 is also seen completed on 29th Jan., 1988, and entered in the D C register as III(ii)(a)/437/87-88 and that it has been noted that "loss not allowed to be carried forward for default under s. 139(3)". It is stated that this was intimated to the assessee by issuing an intimation letter (Inland letter) as provided in s. 143(1) as the section stood at that time. It is also stated that since both the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he belief that the loss returns filed for the said two years have been accepted and carried forward and that the second respondent simply rejected the petition stating that the loss for the years 1986-87 and 1987-88 were not allowed to carry forward as the returns were filed belatedly. The learned counsel further submitted that at any rate, the first respondent CIT was not justified is rejecting the application stating that the petitioner should have pursued action for the asst. yrs. 1986-87 and 1987-88 instead of filing revision against the assessment order for 1988-89. The learned counsel accordingly submitted that Exts. P-4, P-6 and P -10 orders have to be set aside and the assessing authority must be directed to consider Exts. P-5 and P-7 petitions afresh with notice and opportunity to the petitioner. The learned counsel relied on the decision of the Supreme Court in CIT vs. Khushal Chand Daga (1961) 42 ITR 177 (SC) : TC 45R.228. In that case, the Supreme Court with reference to the provisions of s. 24(3) of the IT Act, 1922, held that where the ITO does not notify to the assessee by order in writing the amount of loss for any year as computed by him under s. 24(3) of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the assessee or the production of evidence in this behalf, the ITO shall serve on the assessee a notice requiring him to attend at the ITO's office or to produce, or cause to be produced any evidence on which the assessee may rely. In the instant case, the petitioner has not been afforded an opportunity as contemplated under sub-s. (2) of s. 143 of the Act. It is practically admitted that the order stated to have been passed for the asst. yr. 1986-87 has not been served on the petitioner. Regarding the communication of the assessment order for the year 1987-88 it is stated that the same was intimated by an inland letter. There is absolutely no proof evidence regarding the service of notice of the assessment order for the year 1987-88 also on the petitioner. At any rate, when the petitioner has specifically brought to the notice of the second respondent that he has not received any order of assessment for the years 1986-87 and 1987-88, the second respondent was bound to intimate the fact of completion of the assessment for the said two years and the communication of the order for the year 1987-88 to the petitioner, but curiously enough nothing has been stated about these matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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