I. P. Mukerji,J. - (1.) The Court: The legal point in issue is entirely covered by a Division Bench judgment of our Court in Koppind Pvt. Ltd. v. Commissioner of Income Tax reported in 207 ITR 228. The ratio of that case is that where no return has been filed under section 139(1) or 139(2) of the Income Tax Act, 1961, unabsorbed depreciation cannot be claimed in a proceeding under section 148 of the said Act. This decision has been referred to and relied upon by the tribunal. Inspite of this, Mr. Bhaumik for the applicant assessee has tried to make unnecessarily prolonged argument in this 23 years' old reference application, despite warning by this Court that no substantial question of law was involved, by citing a judgment passed by the Supreme Court in Commissioner of Income Tax, Calcutta v. Jaipuria China Clay Mines (P) Ltd. reported in Vol. LIX ITR 555 and a Division Bench Judgment of the Punjab and Haryana High Court in Commissioner of Income Tax v. Haryana Hotels Ltd. reported in 276 ITR 521.
(2.) In the Supreme Court case, the effect of non-filing of a return under sections 139(1) or 139(2) of the said Act was not involved. Neither is there any ratio in favour of the assessee in the Punjab and Haryana case. Learned counsel relies on a solitary sentence in the said judgment which is extracted below: "Similarly, there is no provision under the Act which makes it mandatory for the assessee to file return for carry forward and set off of unabsorbed depreciation which is to be notified by the Assessing Officer as in the cae of unabsorbed business loss."
(3.) This passage from the judgment can in no way be taken to be a statement of a legal proposition that on failure to file a return under section 139(1) and 139(2) of the said Act, the claim of unabsorbed depreciation can be entertained in a section 148 proceeding. More importantly, we are bound by the said Division Bench judgment of our Court.;