Commissioner of Income-Tax, Punjab Vs.
Kulu Valley Transport Co. (P) Ltd. [1970] INSC 123 (30 April 1970)
30/04/1970 SHAH, J.C.
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION: 1970 AIR 1734 1971 SCR (1) 452 1970
SCC (2) 192
CITATOR INFO:
RF 1975 SC1282 (10) D 1985 SC 114 (8) RF 1988
SC 361 (9) D 1989 SC 501 (16)
ACT:
Income-tax Act, 1922, ss. 22(1), 22(3) and
22(2A)-Voluntary return showing loss filed after statutory period laid down in
s. 22 (1)--Benefit of s. 22(2A) whether can be given to assessee-Whether loss
can be carried forward-Return whether can be treated as one under s. 22(3).
HEADNOTE:
The assessee was a private company
incorporated under the Indian Companies Act, 1913. In January 1956 the company
voluntarily filed returns under s. 22(3) of the Income--tax Act, 1922 showing
losses for the assessment years 1953-54 and 1954-55. No notice had been served
on the company under s. 22(2) of the Act. The income-tax Officer held that
since the returns had been filed after the statutory period the company was not
entitled to carry forward the losses for both the years in the subsequent
assessments. The Appellate Assistant Commissioner dismissed the company's
appeal and its application for condoning the delay in filing the returns in
question. The Tribunal held that the company was not entitled to the benefit of
carrying forward the losses as it had not filed the returns in accordance with
s. 22(2A) of the Act. The High Court, in reference, held that a voluntary
return showing loss could be validly filed at any time before assessment was
made on the strength of the provision in s. 22(3) of the Act and the assessee
was entitled to have such loss carried 'forward under s. 24(2).
The Commissioner of Income-tax appealed to
this Court,
HELD: Per Hegde and Grover, JJ.-The appeal must
be dismissed.
(i) In view of this Court's decision in
Ranchhoddas Karsondas's case the income-tax Officer could not have ignored the
returns and had to determine the losses shown by the assessee. Section 24(2)
confers the benefit of losses being set off and carried forward and there is no
provision in s. 22 under which losses have to be determined for the purposes of
s. 24(2). Section 22(2A) does not place any limitation on that right. It simply
says that in order to get the benefit of s. 24(2) the assessee must submit his
loss return within the time specified by s. 22(1). That provision must be read
with s. 22(3) for the purpose of determining the time within which a return has
to be submitted. It can well be said that s. 23(3) is merely a proviso to s.
22(1). Thus a return submitted at any time before the assessment is made is a
valid return In considering whether a return made is within time sub-s. (1) of
s. 22must be read along with sub-s. (3) of that section. A return whether it is
a return of income, profits or gains or loss must be considered as having been
made within the time prescribed if it is made within the time specified in s.
22(3). In other words if s. 22(3) is complied with s. 22(1) also must be held
to have been complied with. If compliance has been made with the latter
provision the requirements of s. 22(2A) would stand satisfied. [463 F-H. 464
A-B] (ii) The argument that a great deal of inconvenience will result of a
voluntary return can be entertained at any time in accordance with 453 s. 22(3)
when loss is involved and in order to give the assesses the benefit of the
carry forward of the loss a number of assessments would have to be reopened,
could not be accepted. A voluntary return cannot in any case be filed beyond the
period specified in s. 34(3) of the Act. It cannot be overlooked that even if
two views are possible the view which is favorable to the assessee must be
accepted while construing the provisions of a taxing statute.[464 CD]
Commissioner of Income-tax, Bombay City v. Ranchhoddas Karsondas, 36 I.T.R.
569, applied.
Radhakrishiba Rtingta & Ors. v. Seventh
Income-tax Officer C-11 Ward, Bombay, 49 I.T.R. 846. approved.
Commissioner of Agricultural Income-tax v.
Sultan Ali Gharami, 20 I.T.R. 432, Commissioner of Income-tax,West Bengal v.
Govindlal, 33 I.T.R. 630 and Ranchhoddas Karsondas v. Commissioner of
Income-tax, Bombay City, 26 I.T.R. 105, referred to.
Per Shah, J. (Dissenting) :-The clause
"'if he is to be entitled to the benefit of the carry forward of loss"
in.sub-s. (2A) of s. 22 clearly means that the right to carry forward loss
suffered under the head of income computable under s. 10 may only be exercised
if the voluntary return is filedwithin the period specified in sub-s. (1).
Sub-Section 3 cannot be readas implying that notwithstanding the restrictions
placed by sub-s.
(2A)return disclosing loss of income
computable under s. 10 will not only be entertained but the loss determined and
declared under S. 24(3) so as to enable assessee to carry it forward. If a
return of loss may be filed at any time in pursuance of a general notice under
sub-s. (1), sub-s. (2A) will serve no purpose whatever, The limitation placed
upon the right to file return of loss is clearly intended to avoid practical
difficulties in the administration of the Act. If the interpretation placed by
the High Court be accepted, a tax-payer may avoid making returns pursuant to
notice under sub-s. (1) and when sought to be assessed in subsequent years he
may claim to bring before. the authorities transactions relating to many
previous years which be has not disclosed. [458 G-H; 459 A-C] it was certainly
held by this Court in Ranchhoddas Karsondas's case that a return disclosing
income below the taxable limit or disclosing such loss cannot be rejected by
the Income-tax Officer as not being return of income but that does not mean
that the assessee may after filing voluntary return of loss income under the
head "profits and gains of business" after the period specified in s.
22(1) claim that the loss be determined and carried forward. [459 D-E] Case-law
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 859 and 860 of 1966.
Appeals from the judgment and order dated
April 6, 1966 of the Punjab High Court in Income-tax Reference No. 42 of 1962.
Jagadish Swarup, Solicitor-General and B. D.
Sharma, for the appellant (in both the appeals).
B.Sen, S. K. Dholakia, and Vineet Kumar, for
the respondent (in both the appeals).
12Sup.Cl/70-15 454 The Judgment of K. S.
HEGDE and A. N. GROVER, JJ. was delivered by GROVER, J.J. C. SHAH, J. gave a
dissenting Opinion.
Shah, J. The Kulu Valley Transport Co. ?(P)
Ltd. Here in after called 'the Company'--did not file returns of income in
respect of the assessment year 1953-54 and 1954-55 within the period specified
in the general notice under s. 22(1) of the Income-tax Act, 1922. In January
1956 the Company filed voluntary returns disclosing loss of income in the
course of its business amounting to Rs. 151,520/and Rs. 48,977 respectively for
the two years in question. The Income-tax Officer refused to determine the
loss, observing"This is a loss case and the return has been filed after
the statutory time. The Company is therefore not entitled to the benefit of
carry forward of loss in the subsequent assessments. The case is, therefore,
filed." Against the order of the Income-tax Officer, appeals were
preferred to the Appellate Assistant Commissioner. That Officer rejected the
Company's request for extension for filing the returns, and dismissed the appeals,
observing-"The return made under s. 22(2A) can only be taken to be a
return under sub-s. (1) of s. 22 for the purpose of this Act, if it is made
within the Saturday time prescribed in sub-s.(2A) of s. 22." The
Income-tax Appellate Tribunal in second appeal held that the expression
"all the provisions of this Act shall apply as if it were a return under
sub-section ( in sub-s. (2A) only applies to a valid return i.e., return which
is filed with the time limit prescribed under sub-s. ( 1). The Tribunal ejected
the contention that a voluntary return disclosing loss of income submitted
after the expiry of the period for filing a return under sub-s. (1) may be
deemed to be a return under sub-s. (3), an the loss disclosed therein must be
determined under sub-s. (2) of s. 24 to qualify the assessee to carry it in the
following year.
At the instance of the assessee the Tribunal
referred the following question to the High Court of Punjab "Whether the
losses of Rs. 1,51,520 and of Rs.
48,977 returned by the assessee in January
1956 for the assessment years 19.53-54 and 1954-55 respectively requite in law
to be determined and carried forward under s. 24(2) of the Income-tax
Act?" 4 5 5 The High Court answered the, question in the affirmative.
The Commissioner of Income-tax has appealed
to this Court with certificate granted by the High Court.
Sub-section (2A) of s. 22 which was added to
S. 22 by s.14 of Act 25 of 1953 with effect from April 1, 1952, provides:
"If any person who has not been served
with a. notice under subsection (2) has sustained a loss of profits or gains in
any year under the head "Profits and gains of business, profession, or
vocation", and such los s of any part thereof would, ordinarily have been
carried forward under sub-section (2) of section 24, he shall, if he is to be
entitled to the benefit of the carry forward of loss in any subsequent
assessment, furnish within the time specified in the general notice given under
subsection (1) or within such further time as the Income-tax Officer in any case
may allow, all the particulars required under the prescribed form of return of
total income . . . . in the same manner as he would have furnished a return
under sub-section (1) had his income exceeded the maximum amount not liable to
income-tax in his case, and all the provisions of this Act. shall apply as if
it were a return Under sub-section ( 1.)." On the plain words used by the
Parliament, sub-s. (2A) applies only where the return is filed within the time
specified in the general notice under sub-s. (1) or within such further time as
the Income-tax Officer may allow. A return not filed within the time prescribed
by sub-s. (1) or time extended by the Income-tax Officer does not comply with
the requirement of sub-s. (2A), and the assessee cannot claim that the loss be
determined and carried forward.
The, High Court however held that a voluntary
return filed after the expiry of the period specified in sub-s. (1) but before
the assessment is made must still be entertained as a return filed under
sub-s.(3), even if it returns a loss of income under the head "Profits and
gains of business, profession or vocation". In the view of the High Court,
sub-s. (3) of S. 22 applies to all returns whether disclosing profit or loss,
and whether made voluntarily or pursuant to a notice under sub-s. (2), and on
that account even if the return is filed beyond the period prescribed by S.
22(1), and discloses a loss the Income-tax Officer was bound to determine the
loss so that it may be carried forward in the following year. In reaching that
conclusion the High Court purported to rely upon Commissioner of Income-tax,
Bombay City 11 v. Ranchhodas L12Sup.Cl/70-16 4 5 6 Karsondas(1) and
Radhakrishna Rungta & Ors. v. Seventh Income-tax Officer, C-II Ward,
Bombay(1).
The view expressed by the High Court cannot,
in my judgment, be sustained. The assessee who has sustained loss of income
under the head "Profits and gains of business, profession or
vocation" and who has not been served with a notice under sub-s. (2) may qualify
for carrying forward the loss in any subsequent year of assessment must furnish
within the time specified in the general notice under sub-s. (1) or such time
as may be extended by the Income-tax Officer a return in the prescribed form
disclosing that loss. Under a return filed not in compliance with a notice
under sub-s. (2) disclosing loss and filed beyond the time specified in the
general notice or extended time, the assessee cannot claim to carry forward the
loss. The view expressed by the High Court renders sub-s. (2A) otiose.
It is implicit in the conclusion reached by
the High Court that the right to carry forward loss which is expressly
restricted by sub-s. (2A) may still be exercised under subs. (3). In
determining whether the view expressed by the High Court is permissible, it is
necessary to refer to the decisions of the Courts under s. 22 before it was
amended by Act 25 of 1953. It was held in interpreting s. 22 before it was
amended that a return filed beyond the period specified in the general notice,
if filed before the assessment is made, must, if it disclosed profit exceeding
the maximum exempt from tax, be dealt with according to the provisions of the
Act. There was a conflict of decisions on the question whether a return could
be filed voluntarily disclosing income below the limit of exemption. In P. S.Rama
Iyer v. Commissioner of Incometax (3) it was held that a return disclosing
profit below the maximum exempt from tax was a valid return : the Calcutta High
Court in Commissioner of Agricultural Income-tax v. Sultan Ali (4) expressed a
contrary view. This court in Ranchhoddas Karsondas's case(1), agreeing with the
Bombay High Court held that a return disclosing income below the taxable limit
submitted voluntarily in answer to the general notice under S. 22 (1) of the
Income-tax Act is a good return : it is a return such as the assessee considers
represents his true income, and that a return in answer to the general notice
under S. 22(1) or in answer to a notice under s. 22(2) of the Income-tax Act
may by virtue of s. 22(3) be filed at any time before assessment. A return
voluntarily made before the assessment cannot be ignored by the Income-tax.
Officer. In Ranchhoddas Karonda's case(1) the assessee had returned without a
notice under s. 22(2) income which was less than the (1) 36 I.T.R. 569. (2) 49
I.T.R.
(3) 32 I.T.R. 458. (4) 20 I.T.R.
432.
4 5 7 maximum exempt from tax. But the case
did not deal with a return in which loss was disclosed by the assessee. In
Anglo French Textile Co. Ltd. v. Commissioner of Income-tax, Madras: No. 4(1)
the assessee Company had submitted a "nil return" pursuant to a
notice under s. 22(2). The Income-tax Officer computed the income of the,
Company under S. 23 (1) of the Income-tax Act, 1922 as "nil".
Proceedings were later started under S. 34 of the Income-tax Act to assess the
income which the Income-tax Officer believed to have escaped assessment. The
assessee then claimed that the loss of profits sustained by it in the previous
year should be determined in the proceeding under S. 34 and such loss should be
allowed to be, carried forward and set off against the income which may be
determined for the year for which the notice under S. 34 was issued. The High
Court of Madras decided the case on a point which is not relevant here. The
case was carried to this Court in appeal. In Anglo-French Textile Company Ltd.
v. Commissioner of Income-tax Madras(1) this Court heard that where no return
was filed by an assessee at any stage of the case disclosing any income,
profits or gains at aft and proceedings were later started under s. 34, the
assessee could not claim in the course of those proceedings that a certain loss
of a previous year should be determined and recorded. The Court observed at pp.
85 & 86:
"There is no provision in the Act which
entitles the assessee to have a loss recorded or computed, unless something is
to be done with the loss. Thus, under Section 24(1) a loss can be set off
against an income, profit or gain and under subsection (2) the balance of a loss
can be carried forward to a following year on the conditions set out there.
Except for this, there is nothing else that can IN called in aid.
But under sub-section (2) the loss can be
carried forward when "the loss cannot be wholly set off under sub-section
(1)" and in that event only the "portion not so set off" can be
carried forward. We are therefore thrown back on sub-section (1).
Sub-section (1) provides that where an
assessee sustains a loss of profits or gains in any year under any of the heads
mentioned in Section 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." Therefore, before any question of set-off can arise, there must
be(1) a loss under one or more of the heads mentioned in Section 6, and, (2) an
income, profit or gain under some other head. It follows that when there (1) 18
I.T.R. 906.
(1) 23 I.T.R. 82.
458 is no income under any head at all, there
is nothing against which the loss can be set off in that year and unless that
can be done subsection (2) does not come into play." The Court held that
loss of income will not be determined, unless the assessee has more heads of
income than one, and the loss under one head is to be set off against income
under any other head in that year of account. It was implicit in the judgment,
that the taxing authorities will not determine loss under the head
"Profits and gains of business, profession or vocation" when the
assessee has no other source of income.
The Parliament apparently realized the
hardship involved in preventing a person who has only one source (such source
being profession, business or vocation) of income from carrying forward the
loss to the subsequent years of assessment and incorporated by Act 25 of 1953,
with effect from April 1, 1952, sub-s. (2A) and enabled the assessee to carry
forward the loss when he made a return within the time specified in sub-s. (1),
even if there was no other source of income. The Parliament by the same Act
amended sub-s.
(2) of s. 24 and added the words "so
much of the loss as is not so set off or the whole loss where the assessee had
no ,other head of income" after the words "cannot be wholly set off
under sub-section (1) ". This was intended to supersede a part of the
decision of this Court in Anglo-French Textile Company Ltd's case (1).
Sub-sections ( 1), (2), (2A) and (3) of. S.
22 must be interpreted in this background. Undeniably sub-s. (3) confers upon
the assessee a right to submit a return at any time before the assessment is
made. Such a return must be voluntary or pursuant to a notice under sub-s. (2).
The return may disclose income or loss : if however the return was made before
the Act was amended by the incorporation of sub-s. (2A) in s. 22, and it
disclosed loss only, according to the decision of this Court loss will not be
determined if there be a single source of income. If it be a return filed not
pursuant to a notice under sub-s. (2) of S. 22, and discloses a loss of income
under the head "Profits and gains of business" the loss will be
determined and carried forward only if it is made within the period specified
in sub-s. (1) or the period extended by the Income-tax Officer. The clause
"if he is to be entitled to the benefit of the carry forward of loss"
in sub-s. (2A) clearly means that the right to carry forward loss suffered
under the head of income computable under s. 10 may, only be exercised if the
voluntary return is filed within the period specified in sub-s. (1).
Sub-section (3) cannot in my judgment be read as implying that (1)23 I.T.R. 82.
4 5 9 notwithstanding the restrictions placed
by sub-s. (2A) a return disclosing loss of income computable under s. 10 will
not only be entertained but the loss determined and declared under s. 24(3) so
as to enable the assessee to carry it forward. If a return of loss may be filed
at any time in pursuance of a general notice under sub-s. (1), sub-s. (2A) will
serve no purpose whatever. The limitation placed upon the right to file a
return of loss in clearly intended to avoid practical difficulties in the
administration of the Act. If the interpretation placed by the High Court be
accepted, a tax-payer may avoid making returns pursuant to notice under sub-s.
(1), and when sought to be assessed in subsequent years he may claim to bring
before the authorities transactions relating to many previous years which he
has not disclosed.
The view which I am taking-was suggested in
Tulsi Das Jaswant Lal Kuthiala and Others v. Income-tax Officer, Award, Ambala
and Another(1); and also in Radhakrishna Rungta's case(2) at p. 855.
It is true as held by this Court in
Ranchhoddas Karondas's case(3) that a return disclosing income below the
taxable limit or disclosing loss cannot be rejected by the Incometax Officer as
not being a return of income. The view to the contrary in Commissioner of
Income-tax v. Govindlal Dutta (4 ) is erroneous. But that does not mean that
the assessee may after filing a voluntary return of loss income under the head
"Profits and gains of business" after the period specified in s. 22
(1) claim that the loss be determined and carried forward.
In the present case no notice under sub-s.
(2) was issued to the Company, and the Company made a voluntary return. The
return was strictly governed by the terms of sub-s. (2A) of s. 22 and upon such
a return the Company could not claim that loss of income be determined and
carried forward.
I would therefore answer the question in the
negative.
Grover, J. These appeals arise from a
judgment of the Punjab High Court answering the following question which had
been referred to it by the Income tax Appellate Tribunal in the affirmative and
in favour of the assessee "Whether the losses of Rs. 1,51,520/and of Rs.
48,977/returned by the assessee in January 1956 for the assessment years
1953-54 and 1954-55 respectively require in law to be determined and carried
forward under s. 24(2) of the Income tax Act ?" (1)52 I.T.R. 609.
(3)36 I.T.R. 569.
(2) 49 I.T.R. 846.
(4) 33 I.T.R. 630, 460 The assessee Kulu
Valley Transport Co. (P) Ltd. is a private company incorporated under the
Indian Companies Act 1913 having its registered office at Pathankot. In January
1956 the ,company voluntarily filed returns under s. 22(3) of the Income tax
Act 1922, hereinafter called the "Act", showing losses of Rs.
1,51,520/and Rs. 48,977/for the assessment years 1953-54 and-1954-55
respectively. No notice had been served on the company under s. 22 (2) of the
Act. The Income-tax Officer held that since the returns had been filed after
the statutory period the company was not entitled to carry forward the losses
for both the years in the subsequent assessments. Before the Appellate
Assistant Commissioner two main points were urged. The first was that the delay
in the submission of the returns should have been condoned and secondly the
returns should have been treated as having been made under s. 22(3) in which
case also they would be valid returns under s. 22(2A) by reading subsections
(3) and (1) of s. 22 together. The Appellate Assistant Commissioner did not
find any sufficient or reasonable cause for condoning the delay. On the second
point he decided against the company. The Tribunal agreed with the view of the
Appellate Assistant Commissioner and on the main point held that the company
was not entitled to the benefit of carrying forward the losses as it had not
filed the returns in accordance with section 22(2A) of the Act.
Section 24(2) contains substantive provisions
relating to carrying forward of the loss. It provides that where any assessee sustains
a loss or profit or gains in any year being a previous year in any business,
profession or vocation and the loss cannot be wholly set off under sub-s. (1)
(of s. 24) so much of the loss as is not so set off or the whole loss where the
assessee had no other head of income shall be carried forward to the following
year. Subsection 2A of s. 22 was inserted by the Income, tax (Amendment) Act
1953 with effect from April 1, 1952.
"If any person who has not been served
with a notice under sub-section (2) has sustained a loss of profits or gains in
any year under the head "Profits and gains of business, profession or
vocation", and such loss or any part thereof would ordinarily have Ben
carried forward under sub-section (2) of s. 24, he shall, if he is to be
entitled to the benefit of the carry forward of loss in any subsequent
assessment, furnish within the time specified in the general notice given under
sub-section (1) or within such further time as the Income tax Officer in any
case may allow, all the particulars required under the prescribed form of
return of total income and total world income in the same manner as he would
have furnished 461 a return under subsection (1) had his income exceeded the
maximum amount not liable to income tax in his case, and all the provisions of
this Act shall apply as if it were a return under sub-section (1)."
According to s. 22(1) the Income-tax Officer was to give public notice on or
before the, first day of May in each year by publication in the prescribed manner
requiring every person whose total income during the previous year exceeded the
maximum amount which was not chargeable to income tax to furnish within such
period not being less than 60 days as might be specified in the notice a return
of his total income and total world income during that year. The Income tax
Officer could in his discretion extend the date for the delivery of the return.
Under s. 22 (2) if the Income-tax Officer was of the opinion that income of any
person was of such amount as to render him liable to income tax he could serve
a notice on him requiring him to furnish within such period not being less than
30 days a return showing his total income and-total world income during the
previous year. The date for delivery of the return could again be extended in
the discretion of the Income-tax Officer.
Section 22(3) provided that if any person had
not furnished a return within the time allowed by or under sub-s.(1) or sub-s.
(2) or having furnished a return under either of those sub-sections discovered
any amount or wrong statement therein, he could furnish a return or a revised
return at any time before the assessment was made. Thus the scheme of S. 22 is
that a public or general notice is to be given every year by the Income-tax
Officer or he could even give an individual or special notice. But if a person
has not furnished a return within the time allowed by or under the first two
sub-sections of S. 22 he could furnish a return at any time before the
assessment is made. It is well settled by now that a return can always be filed
at any time before the assessment is made. The Income-tax Officer has to make
the assessment on that return and he could not choose to ignore it. The
question that immediately arises is whether in case of a voluntary return in
which loss has been shown and determined the Income-tax Officer can decline to
give the benefit under s. 24(2) of carrying forward the loss on the ground that
the assessee did not comply with the provisions of S. 22(2A) of the Act. in
other words when there is an express provision in that sub-section which must
be availed of if the assessee is to be entitled to the benefit of carrying
forward of loss in any subsequent assessment can he take advantage of the
provisions of S.
22(3) and claim that since he has filed a
voluntary return before any assessment has been made and if it be determined
that he has suffered a lose he is entitled to carry forward that loss.
The argument on behalf of the assessee
is-that s. 24(2) confers the right to carry forward the loss to the following
year pro46 2 vided the conditions contained in the sub-section are satisfied.
There is no further requirement that has to be fulfilled so far as the
substantive law is concerned.
Section 22(2A) is merely a procedural
provision and it also provides that once a return has been furnished in
accordance therewith all the provisions of the Act become applicable as if it
were a return under sub-section (1). That would attract s. 22(3) and therefore
a voluntary return can be filed even after the period mentioned in sub-s. (2A)
has expired so long as the assessment has not taken place. It is pointed out
that supposing a return is filed showing income X but the Income-tax Officer in
the assessment proceedings holds that there has been a loss and the assessee
was mistaken in showing a profit, the assessee in such circumstances can
certainly claim the benefit of S. 24(2). If that is possible there is no reason
or justification for holding that although he could claim the benefit of S.
24(2) by filing a voluntary return in the given illustration he would be
deprived of that benefit if he filed a return voluntarily showing a loss except
in compliance with s. 22(2A). On the other hand the contention on behalf of the
revenue is that S. 22 before its amendment in the year 1953 did not make any
provision for the filing of a loss return voluntarily. Under s. 22(1) returns
which were invited were only of taxable income. No return which in the opinion
of the person making it was a loss return was intended to be filed under s.
22(1). It was only under s. 22(2) that the return that was required to be filed
was in pursuance of the individual notice given by the Income-tax Officer.
Since by this notice a return in the prescribed form had to be filed by a person
to whom the notice was issued whether it was of profit or loss, a loss return
could therefore be filed only in pursuance of a notice served under s. 22(2)
but not voluntarily. It is by virtue of the provisions contained in s. 22(2A)
that a loss return can be filed where a person has not been served under sub-s.
(2) in order to get the benefit of the carrying forward of the loss under s.
24(2). This is indeed expressly provided by sub-s. (2A) of s. 22.
It would appear that the position before the
amendment in 1953 with regard to the filing of a voluntary return of loss was
not clear. Although apparently under the provisions of s. 22 there was no bar
to the filing of such a return in the same way as the return showing profit
could be filed under s. 22(3) there was conflict of judicial opinion on the
point. The Calcutta High Court had held in Commissioner of Agricultural income
tax v. Sultan Ali Gharami(1) and Commissioner of Income tax, West Bengal v.
Govindlal (2) that voluntary returns showing a loss could not be regarded as
returns at all and the Income-tax Officers was not required to make any
assessment on them. The Bombay High (1) 20 I.T.R. 432.
(2) 33 I.T.R. 630.
463 Court, however, had taken a different
view in Ranchhoddas Karsondas v. Commissioner of Income tax, Bombay City(1). In
that case the return which had been filed voluntarily was below the taxable
limit. According to the Bombay High Court such a return could be validly filed
under s. 22(3) and the Income-tax Officer could not ignore it so long as the
return had been filed before any assessment had been made. In Commissioner of
Income tax, Bombay City v. Ranchhoddas Karsondas(2) which was an appeal against
that decision this Court while upholding the Bombay view observed :
"It is a little difficult to understand
how the existence of a return can be ignored, once it has been filed. A return
showing income below the taxable limit can be made even-in answer to a notice
under s. 22(2). The notice under section 22(1) requires in a general way what a
notice under section 22(2) requires of an individual. If a return of income
below the taxable limit is a good return in answer to a notice under s. 22(2),
there is no reason to think that a return of a similar kind in answer to a
public notice is no return at all".
The amendment in 1953 seems to have been made
to clarify the law about the filing of a return showing a loss voluntarily.
It was declared that such a return could be
validly made.
The time which was specified for filing the
return was on the same lines as in sub-s. (1) of s. 22 and all the provisions
of the Act were to apply as if it was a return under sub-s.(1).
Now the question which was submitted for the
opinion of the High Court in the present case, consisted of two parts, viz.
(1) whether the loss returned by the assessee
for the assessment years in question was required in law to be determined by
the Income-tax Officer and (2) whether those losses could be carried forward
after being set off under S. 24 (2) of the Act. The first part of the question
stood concluded by the decision of this Court in Ranchhoddas Karsondas'
case(1). The Income-tax Officer could not have ignore& the return and had
to determine those losses Section 24(2) confers the benefit of losses being set
off and carried forward and there is no provision in s. 22under which losses
have to be determined for the purpose of S.24 (2) The question which
immediately arises is whether S. 22(2) (A) places any limitation on that right.
This sub-section which has been reproduced before simply says that in order to
get the-benefit of s. 24(2) the assessee must submit his loss return within the
time specified by s. 22(1). That provision must be read with s. 22(3) for the
purpose of determining the time within which a return has to be submitted. It
can well be said that s. 22(3) is merely a (1) 26 I.T.R. 105.
(2) 36 I.T.R. 569.
464 proviso to S. 22(1). Thus a return
submitted at any time before the assessment is made is a valid return. In
considering whether a return made is within time sub-s. (1) of S. 22 must be
read along with sub-s. (3) of that section.
A return whether it is a return of income,
profits or gains or of loss must be considered as having been made within the
time prescribed if it is made within the time specified in S. 22(3). In other
words if S. 22(3) is complied with S. 22(1) also must be held to have been
complied with. If compliance has been made with the latter provision the
requirements of s. 22 (2) (A) would stand satisfied.
On behalf of the revenue it is pointed out
that a great deal of inconvenience will result if a voluntary return can be
entertained at any time in accordance with S. 22(3) when loss is involved and
in order to give the assessee the benefit of the carry forward of the loss of
number of assessments would have to be reopened. It is difficult to accede to
such an argument merely on the ground of 'inconvenience. Moreover it is common
ground that a voluntary return cannot be filed beyond the period specified in
s. 34(3) of the Act. It cannot be overlooked that even if two views are
possible the view which is favorable to the assessee must be accepted while
construing the provisions of a. taxing statute.
In the judgment under appeal reliance was
placed on a decision of the Bombay, High Court in Radhakrishna Rungta &
Others v. Seventh Income-tax Officer C-II Ward Bombay(1) and in our opinion the
view taken therein is sound and must be upheld.
The appeals fail and are dismissed with
costs. One hearing fee.
ORDER In accordance with the decision of the
majority, these appeals fail and are dismissed with costs, one hearing fee.
R.K.P.S.
(1) 49 I.T.R. 846.
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