KESHARDEO SHRINIVAS MORARKA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN this reference under S. 66(1) of the IT Act, 1922, at the instance of the assessee, relating to his assessment for the year 1951 -52, the following three questions are referred to this Court by Tribunal:

(2.) SO far as question No. 2 is concerned, the challenge which it set up against the vires of the provisions of S. 23A of the INCOME TAX ACT, 1922, is set at rest by the decision of the Madras High Court in C. W. Spencer vs. ITO (1957) 31 ITR 107 (Mad), and the decision of the Supreme Court in Sardar Baldev Singh vs. CIT (1960) 40 ITR 605 (SC) : (1961) 1 SCR 482 (See observations at page 614). In view of these decisions, the said question has to be answered in the negative, and we answer it accordingly.

(3.) MR . Joshi, learned counsel for the Revenue, has argued that although in view of the Supreme Court decision referred to above, the view taken by the Tribunal would not be sustained, it is possible for him to argue that the conclusion of the Tribunal that the amount of loss which the assessee was entitled to carry forward in the asst. yr 1951 -52 could be only Rs. 20,933 is correct. Mr. Joshi's argument is that the amount of loss which the assessee was entitled to carry forward in the following year was determined by the ITO in the assessee's assessment of the asst. year 1950 - 51. By his assessment order, he had notified to the assessee in writing the amount of the loss as computed by him under S. 24(3) of the IT Act. This order has been made appealable under S. 30 of the Act. According to Mr. Joshi, the assessee had appealed from the assessment order passed by the ITO for the asst. year 1950 -51, but had made no challenge in that appeal as against the computation by the ITO of the loss to be carried forward. The said computation, therefore, at Rs. 20,933 was final and could not thereafter be agitated by the assessee in the assessment of the following year. In the assessment of the following year, i.e., of the asst. year 1951 -52, the ITO, therefore, was right in taking the loss to be carried forward in that year at Rs. 20,933.