9911796707
TMI Blog1981 (4) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the value of perquisites received by the assessee in the form of rent for the residential accommodation on from Bharat Barrel & Drum Manufacturing Co. Pvt. Ltd. of which he was the director. A further sum of Rs. 100 was added on account of dividend income received on the shares in that company held by him. In the appeal filed by the assessee before the AAC, one of the points raised was that he was a partner in the firm, M/s. Lokenath Tolaram, in which he had suffered a loss of Rs. 3,221 in the assessment year in question, that is, 1958-59, and the I TO had not set off the said loss in the original assessment and having regard to this omission, there was no question of reassessing his income in view of the provisions of s. 152(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was entitled to claim set-off of the loss of Rs. 3,221 being his share of the loss in the unregistered firm of M/s. Lokenath Tolaram ? (2) Whether, on the facts and in the circumstances of the case, the assessee was entitled to claim set-off of the loss of Rs. 3,221 in the reassessment proceedings?" With the consent of the counsel for the parties, we have modified the second question in order to bring out correctly the basis on which the assessee's claim that the reassessment proceedings were liable to be dropped in view of the provisions of s. 152(2) of the I.T. Act, 1961. The modified question No. 2 reads as follows: "Whether, on the facts and in the circumstances of the case, the assessee was entitled to claim set-off of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment or computation had been properly made : Provided that in so doing he shall not be entitled to reopen matters concluded by an order under section 154, 155, 260, 262 or 263." Now, the argument on behalf of the Revenue is that the assessee had admittedly filed an appeal challenging his original assessment, and, therefore, having regard to that fact, the assessee was not entitled to claim the benefit of the provisions of s. 152(2) of the Act, and, therefore, according to the learned counsel, though the assessee would have been able to claim set-off of the loss of Rs. 3,221 in the original assessment, it was not now open to him in the reassessment proceedings to say that if that loss of Rs. 3,221 was allowed to be set off, then the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of s. 152(2) of the Act. Having regard to the modified form of the question, it is not necessary for us to go into the wider question as to whether after the assessment has been reopened the entire assessment is at large, because on the peculiar facts, of the present case, it appears to us that if the assessee could urge in the reassessment proceedings that he was entitled to a setoff of the loss of Rs. 3,221, then even though the income which had escaped assessment amounting to Rs. 3,100 was added, he had already been assessed on a sum not lower than what he would otherwise be rightly liable for. Now, it is well known that an order of assessment may determine several kinds of claim for deduction, allowance or set-off made befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim being made by the assessee to challenge the original assessment to the extent that it was subjected to appeal. The intention to enable the assessee, to agitate certain matters which are not subjected to the scrutiny by the AAC for the limited purpose of s. 152(2) appears to us to be made more clear by the proviso which expressly provides that the assessee shall not be entitled to reopen the matters concluded by an order under s. 154, 155, 260, 262 or 263. The reference to the provisions of ss. 154 and 155 indicates that the ITO, after making the original assessment, may re-apply his mind to certain matters. Section 154 deals with the rectification of mistakes apparent from the record and s. 155 deals with an amendment of the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to show to the ITO that, even assuming that a sum of Rs. 3, 100 had escaped assessment, the assessee claiming a set-off for the loss of Rs. 3,221 would not be liable to reassessment, because even if he had been' assessed after taking into account the income which had escaped assessment, he had already been assessed on an amount which was larger than what he was rightly liable to be assessed on. The Tribunal, in our view, therefore, is right in holding that he was entitled to urge that the set-off of the loss of Rs. 3,221 should be allowed and the reassessment proceedings should be quashed. In the view which we have taken, the two questions referred, out of which the second one has been modified, are answered as follows: Question No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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