RANGANATH MISRA - (1.) THIS appeal is by special leave and the judgment of the Allahabad High Court on a reference under S. 256(1) of the Income-tax Act, 1961 (hereafter referred to as 'the Act') is assailed by the Revenue.
(2.) THE relevant assessment year is 1965-66 corresponding to the previous year ending on 31-12-1964. In its return the assessee, a private limited company, disclosed capital gains of Rs. 3,10,200.00 but claimed set off of capital loss of Rs. 3,17,500.00 sustained by it during the assessment year 1957-58 over sale of shares to three associate concerns. It was maintained by the assessee that the loss was sustained in the previous year relevant to the assessment year 1957-58 and the same should be set off against the capital gains in the assessment year in question. THE Income-tax Officer disallowed the claim for set off on the footing that when in the assessment year 1957-58 the loss was claimed it was excluded in the computation of income as capital loss and the Appellate Assistant Commissioner while disposing of the assessee's appeal had stated that it was a notional capital loss. As no further appeal was carried by the assessee, with the first appellate order the matter had become final. The assessee challenged the rejection of its claim of set off before the Appellate Assistant Commissioner and he dismissed the appeal by holding that there was no genuine loss; it was essentially notional in nature and that the claim for set off to be admissible had to be notified by the Income-tax Officer under S. 24(3) of the 1922 Act to the assessee by an order in writing. That having not been done, the claim was not admissible. Thereupon the assessee went before the Appellate Tribunal and reiterated its claim. The Tribunal came to the conclusion that the assessee was entitled to the benefit of set off of loss provided it satisfied that its capital loss was computed under the old Act. In its view as the assessee had filed its return showing the loss and the Income-tax Officer neither computed the loss nor passed an adverse order, the Income-tax Officer was not entitled to take advantage of his own failure and reject the assessee's claim of carry forward and set off of loss on the ground that loss had not been determined as required under S. 24(3) of the Income-tax Act, 1922. The Tribunal further found that the Income-tax Officer had clearly disallowed the assessee's claim of revenue loss by holding that it was a capital loss. It found that the Appellate Assistant Commissioner had no justification to hold that the claim of loss was not genuine while disposing of the appeal for the assessment year 1957-58 and ultimately allowed the assessee's claim. At the instance of the Revenue four questions were refered for opinion of the High Court : 1. Whether on the facts and in the circumstances of the case, the Income-tax Officer's order for the assessment year 1957-58 had not merged in the Appellate Assistant Commissioner's order in which the Appellate Assistant Commissioner had given a clear finding that the loss was notional ? 2. If the answer to the above question is in the negative, whether any loss could be said to have been determined for the assessment year 1957-58, which could be carried forward to subsequent years ? 3. Whether in view of the provisions of S. 80 of the Income-tax Act, 1961, the loss claimed for the assessment year 1957-58 could be set off against the income determined for the assessment year 1965-66 ? Whether the Tribunal was justified in law in holding that the provisions in S. 24(3) regarding intimation of losses determined by the Income-tax Officer do not apply to the loss falling under the head 'capital' ? The High Court found that the Income-tax Officer in the assessment order for 1957-58 had mentioned : "Net loss as per profit and loss account - adjust Rs. 3,17,205.00. JUDGEMENT_452_3_1987Html1.htm 4. It is true that in appeal the Appellate Assistant Commissioner had held :- "A perusal of the assessment records show that the appellant held 2,500 ordinary shares in M/s. B. R. Ltd. These shares were held on investment account and were not stock-in-trade of the Company. M/s. B. R. Ltd. is an associated concern and the shares were sold to allied concerns and a loss of Rs. 3,17,500.00 was worked out. Firstly, the shares were investment shares. Secondly, the price for which the shares were transferred to another associated concern was a notional price. The management just transferred the shares held by one company to another company under their control and management. Of course, the transfer was not a trading activity. In these circumstances, I hold that the Income-tax Officer has rightly disallowed the loss claimed, the same being notional capital loss." The High Court found that both the Income-tax Officer as also the Appellate Assistant Commissioner had found that the loss was a capital loss. The High Court further found :- "In our opinion, this section (S. 80 of the 1961 Act) cannot apply to a case where in law a return could not have been filed under S. 139. That is to say in relation to assessment years prior to the coming into force of the Income-tax Act, 1961 a return could not possibly have been filed under S. 139 because in these years this section was not on the Statute Book. But in S. 80 is construed to mean that a return filed under the Income-tax Act, 1922 is also within its purview then in our opinion the requirement of this section was equally fulfilled because the assessee has for the assessment year 1957-58 filed a return of loss which loss had been determined by the Income-tax Officer in the assessment order."
(3.) THE High Court took the view that in order for assessment year 1957-58, the Appellate Assistant Commissioner has referred to the claims of loss as notional when he really meant that it was an estimate. It agreed with the conclusion of the Tribunal and found against the Revenue. Section 24 of the 1922 Act which applied to the assessment year 1957-58 as far as relevant provided : "(1) Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in S. 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year ... " (2A) Notwithstanding anything contained in sub-sec. (1), where the loss sustained is a loss failing under the head 'capital gains', such loss shall not be set off except against any profits and gains failing under that head." (2B) Where an assessee sustains a loss such as is referred to in sub-section (2A) and the loss cannot be wholly set off in accordance with the provisions of that sub-section, the portion not so set off shall be carried forward to the following year and set off against capital gains for that year, and if it cannot be so set off, the amount thereof not so set off shall be carried forward to the following year and so on. So, however, that no loss shall be carried forward for more than eight years ... " (3) When, in the course of the assessment of the total income of any assessee, it is established that a loss of profits or gains has taken place which he is entitled to have set off under the provisions of this section, the Income-tax Officer shall notify to the assessee by order in writing the amount of the loss as computed by him for the purposes of this section." ;