TMI Blog1982 (6) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... r hearing, there was no representation from any of the respondents before us. These appeals are, therefore, disposed of by virtue of the powers vested in us under s. 24 of the IT Appellate Tribunal Rules, 1963. 3. In the case of Shri Amar Nth, who is assessed as individual, a return was filed on 26th Oct., 1976 declaring loss of Rs. 45,772. Similarly, Shri Chander Pal and Shri Vishwa Nath filed the returns on 26th Oct., 1978 in their cases. Shri Chander Pal declared loss of Rs. 45,898 whereas loss declared by Shri Vishwa Nath was Rs. 45,723. It is common ground that they were all partners in the firm of M/s Lehnumal Ram Krishan. In the case of the firm, an assessment had been completed on 1st Jan., 1979 after issue of a notice under s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act would not be applicable". He held that the set off and carry forward of the loss is, therefore, rightly claimed and has to be allowed in the hands of these assessees. The revenue is, therefore, aggrieved in each case with his order. Hence the present appeals. 6. After careful consideration of the submissions made by the Revenue before us and what is stated in the orders of the authorities below, we are convinced that there is no case made out by the Revenue for an interference in the orders of the AAC. Sec. 80 of the Act incorporates a provision for submission of the return for loss its carry forward. It says that notwithstanding anything contained in this Chapter, i.e., chapter VI of the Act, no loss which has not been dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sec. 148 deals with issue of notice where the income has escaped assessment. This provides that before making the assessment, re-assessment or recomputation, under s. 147, the ITO shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-s. (2) of s. 139 and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. Sub-s. (2) of s. 139 provides that in the case of any person who, in the ITO's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the ITO may, before the end of the relevant assessment year, issue a notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss, such loss may be set off, or carried forward and set off in accordance with the provisions of this Chapter and we have already mentioned that this Chapter VI includes ss. 66 to 80. 9. A careful perusal of the various provisions of the Act shows that when loss is determined in the hands of a firm, and it is allocated in hands of the partners, it has to be either set off or carried forward and set off in the hands of the partner only. In the case before us, there is no dispute that in each case before us, loss had been allocated by an order in the case of the firm made on 11th Jan., 1979 and it is also a trite law that the firm is not entitled to carry forward the loss determined in the hands of the firm and allocated to the partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the loss of the firm or the apportionment thereof between several partners, but he cannot agitate such matter in any appeal preferred against an order of assessment determining his own total income or loss. This provision on the statute book indicates that matters relating to the assessment of the firm are to be agitated in the hands of the firm only and once and allocation is made, the partner is entitled to avail of apportionment of share either as a profit or as a loss in computing his total income. 10. Sec. 67(4) of the Act r/w s. 247 clearly indicates that in the hands of the partner allocation of loss cannot be treated in the manner done by the ITO because he was importing into the assessment of the partner what in fact was releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
