RAJESH BINDAL, J. - (1.) BENCH , Amritsar (for short, 'the Tribunal'), in ITA Nos. 531 to 534/Asr/1998, for the asst. yrs. 1992 -93 to 1995 -96.
(2.) AT the time of admission of appeals, the following substantial question of law was framed for adjudication by this Court : "Whether in the facts and circumstances of the case, the Tribunal was correct in law in holding that the assessee was not entitled to set off depreciation allowed in the case of the firm by taking recourse to the provisions of s. 155 of the IT Act, 1961 -
(3.) FIRSTLY , the case for the asst. yr. 1992 -93 is being taken up. Return for the year in question was filed by the assessee as, by that time, dispute regarding carry forward of losses for the year 1991 -92 had not been settled in appeal. It was depreciation of Rs. 4,57,629 was quantified to be carried forward to the next year. Even before the appeal effect was application under s. 154 of the IT Act, 1961 (for short, 'the Act') for rectification of the orders passed for the asst. yr. 1992 -93 for the giving consequential effect in the year of the appeal effect order passed for the asst. yr. 1992 -93. The processed under s. 143(1)(a) of the Act, no action under s. 154 of the Act is possible. In appeal, the assessee succeeded before the Commissioner of Income -tax (Appeals) [for short, 'the CIT(A)'], but in further appeal by the Revenue, the Tribunal reversed the order of the CIT(A). The short submission made by learned counsel for the appellant in the present case is that at the time when the return for the asst. yr. 1992 -93 was filed, as the loss to be carried forward for the assessment year had not been determined there was no possibility of assessee's claiming carry forward of unabsorbed depreciation. However, in appeal for the asst. yr. 1991 -92, the plea of the assessee was accepted; the appeal effect of the order passed by the CIT(A) for the asst. yr. 1990 -91 and consequently for 1991 -92 was given by the AO only after the return for the asst. yr. 1992 -93 had already been filed. Accordingly, the assessee could not have claimed deduction on account of carry forward of losses at that stage. The benefit, which was admissible, was not granted to the assessee in spite of clear finding in the appeal 154 of the Act. The only ground mentioned in the order rejecting the claim of the assessee for rectification was that the return having been processed under s. 143(1)(a) of the Act and the assessee having not claimed the benefit at the initial stage will not be permitted to claim the benefit thereof at this stage.;