Certiorari review in tax matters is limited: disputed factual foundations must be shown before business loss or depreciation set-off is allowed.

On certiorari, the High Court will not interfere with a revisional tax order on a disputed factual question unless an error of law is apparent on the face of the record. The Court held that the character of shareholding as trading assets, and whether dividend income could be treated as business income for set-off of carried-forward business loss, depended on facts not established before the Commissioner; the refusal to allow the set-off was therefore sustained. The Court also held that unabsorbed depreciation could not be carried forward and set off in the absence of business income in the relevant year, so the alternative depreciation claim also failed.

---

---

Issues: (i) Whether the Commissioner's order refusing to treat dividend income from shares as business income and thereby denying set-off of carried-forward business loss under section 24(2) of the Indian Income-tax Act, 1922 suffered from an error of law apparent on the face of the record. (ii) Whether the petitioner was entitled, in the alternative, to carry forward and set off unabsorbed depreciation under section 10(2)(vi), proviso (b), of the Indian Income-tax Act, 1922 in the absence of business income in the relevant year.

Issue (i): Whether the Commissioner's order refusing to treat dividend income from shares as business income and thereby denying set-off of carried-forward business loss under section 24(2) of the Indian Income-tax Act, 1922 suffered from an error of law apparent on the face of the record.

Analysis: The jurisdiction in certiorari extends to correcting errors of law apparent on the face of the record, not to reappreciating facts. The petitioner had asserted that the shares were trading assets and that the dividend income was business income, but the Commissioner had no adequate material before him to compel acceptance of that contention. The basic factual foundation for applying the authorities relied on by the petitioner was not established, because the decisive question was whether the shares formed part of the assessee's business assets. The Court held that this was a question of fact, and the materials on record did not show that the Commissioner acted arbitrarily, capriciously, or in disregard of any statutory provision.

Conclusion: The refusal to allow set-off of business loss against the dividend income did not disclose any error of law apparent on the face of the record and was sustained against the assessee.

Issue (ii): Whether the petitioner was entitled, in the alternative, to carry forward and set off unabsorbed depreciation under section 10(2)(vi), proviso (b), of the Indian Income-tax Act, 1922 in the absence of business income in the relevant year.

Analysis: The allowance for unabsorbed depreciation becomes relevant only when there is a computation of business income under section 10 in the current year. Where there is no assessment under the head "business" in that year, the depreciation allowance cannot be worked out in the manner contended for by the petitioner. The Court therefore accepted the view that the earlier decision relied on by the petitioner did not assist, because the statutory basis for carrying forward depreciation was absent on the facts found.

Conclusion: The alternative claim for set-off of unabsorbed depreciation was rejected against the assessee.

Final Conclusion: The writ challenge to the Commissioner's revisional order failed, and the assessee was not entitled to the claimed set-off or the alternative depreciation relief.

Ratio Decidendi: In certiorari, the High Court will not interfere with a revisional tax order on a disputed factual question unless there is an error of law apparent on the face of the record; carried-forward business loss or depreciation can be set off only when the statutory factual foundation for treating the relevant income or allowance as business-related is established.

---