Suhas Chandra Sen, J. - (1.) The Tribunal has referred the following question of law to this court under Section 256(1) of the Income-tax Act, 1961 : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in declining to allow the benefit of carry forward and set off of the losses for the earlier assessment years on the ground that returns of income for those assessment years were not furnished in terms of Section 139 although they were furnished in terms of notice under Section 148 ?"
(2.) The facts of the case, as stated by the Tribunal, are as follows : "For the assessment years 1970-71, 1971-72 and 1972-73, income-tax assessments were completed under Section 143(3) determining losses as stated below: JUDGEMENT_570_ITR191_1991Html1.htm
(3.) There was no assessment for the assessment year 1974-75. For the assessment year 1975-76, the Income-tax Officer, A-Ward, Burdwan, made an assessment determining an income of Rs. 74,828. On a prayer of the assessee, the said officer declined to set off the losses for the years mentioned above against the above income for this year on the ground that the assessments for the said years were completed in pursuance of alleged notices under Section 148 of the Income-tax Act, 1961. On appeal, the Appellate Assistant Commissioner confirmed the order of the Income-tax Officer in this respect The assessee preferred a second appeal before the Tribunal. The Tribunal upheld the order of the Appellate Assistant Commissioner by observing as under : "We have heard the rival submissions and gone through the facts on record. A perusal of the assessment orders would show that the assessee filed returns for the assessment years 1970-71, 1971-72 and 1972-73 in compliance with the notice under Section 148 and no returns of income for those three years were filed under Section 139. In accordance with the clear provision of Section 80, no loss which has not been determined in pursuance of a return filed under Section 139 shall be carried forward and set off against future profits. We are unable to concede to the submissions of the assessee's counsel that there is no difference between a return filed under Section 148 inasmuch as Section 148 is to apply in a case where income has escaped assessment whereas Section 139(2) empowers the Income-tax Officer to issue notice to any person who, in the opinion of the Income-tax Officer, has taxable income. Viewed thus, we would hold that the assessee was not entitled to the benefit of carry forward of losses for the aforesaid three assessment years.";