TaxTMI 
TaxTMI 
1956 (10) TMI 33
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....ur and then started business at Nagpur, Bikaner, Secunderabad and Shailu. The old firm of R.B. Bansilal Abirchand had in the past business at all these places. Bikaner, Secunderabad and Shailu are outside British India. The sources of the assessee's income in the year of account were speculation, allowance from government as treasurers, house property and dividends. 3. In the course of the assessment for the year 1942-43, a question of setting off the profits of the year of account against some loss of the immediately preceding year came up for consideration by the Income- tax Officer. The Income-tax Officer in paragraph 3 of his assessment order observed as under: "Last year the assessee was in a net loss of Rs. 53,078 which has been carried forward. It is to be split up in the proportion of the individual British Indian business loss, the foreign business loss and the share loss. The loss from the individual British Indian business was Rs. 2,62,012 and that from the foreign business Rs. 2,200. The share loss from the R.B.B.A. was Rs. 38,158. In this year the firm of....
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....d to the next year. Now Mr. Thakkar's contention is that the figure determined, namely Rs. 53,840, is incorrect and that it should be much more. This contention could only be preferred in an appeal against the assessment for the year 1941-42. We find from the records that the assessee did prefer an appeal against the assessment for the year 1941-42, but did not take up the contention now sought to be raised. In our opinion, the third ground of appeal cannot be raised in the appeal against the assessment for the year 1942-43." 4. The assessee has raised three questions before us and with regard to these, the respondent, viz., the Commissioner of Income-tax, Madhya Pradesh&Bhopal, in his written reply states that these questions do not arise out of the Tribunal's order. In our opinion, a question of law does arise and we refer the following question: "Whether the assessee was competent in law to raise a question with regard to the determination of loss for the assessment year 1941-42, as finally determined in appeal, in the course of proceedings for the assessment year 1942-43 whe....
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....50, the following are the essential facts: As stated earlier, the assessee was a partner in an unregistered firm. His share of profit from that unregistered firm for the assessment year 1948-49 came to Rs. 1,82,773. This share is to be included in the total income of the assessee only for rate purposes inasmuch as, under section 14(2)(c) of the Act, no tax is payable by an assessee, if a partner of an unregistered firm, in respect of any portion of his share in the profits and gains of the firm computed in the manner laid down in section 16(1)(b), on which the tax has already been paid by the firm. It is not very clear from the assessment order as to what the Income-tax Officer did with regard to this profit, but it appears from the Appellate Assistant Commissioner's order that though the Income-tax Officer included the entire share income for the purpose of determining the total income of the assessee, as also for the purpose of determining the rate at which tax on total income was to be paid by the assessee, for the purpose of exemption under section 14(2)(c) the share income from the unregistered firm, viz., Rs. 1,82,773, was reduced by the Income-tax Officer by the amoun....
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.... is strictly in accordance with the provisions of the Act and I do not find anything incorrect in the computation of the total income of the assessee by the Income-tax Officer or in the computation of the tax due from the assessee." 8. The Tribunal did not agree with the view of the Income-tax Officer and the Appellate Assistant Commissioner and held that the loss, if any, to be carried forward had to be determined without reference to the assessee's share income from the unregistered firm. In giving that finding, the Tribunal relied upon the case, Commissioner of Income-tax, Madras v. Ratanshi Bhavanji*. 9. Similar is the case with regard to the assessment year 1949-50. The assessee's share income from the unregistered partnership amounted to Rs. 1,39,922. The Income-tax Officer instead of exempting that amount from tax under section 14(2)(a) reduced it by business loss of Rs. 60,589, which was made up of Rs. 49,479, loss from individual business and Rs. 10,610, being share of loss from another firm. The facts and circumstances relating to this year are the same as those of the assessment year 1948-49. 10. Out of the facts stated above, a question of law that aris....
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....ved during the year ending Diwali of 1941 his share of assets and properties from the old firm of R. B. Bansilal Abirchand of Nagpur and then started business at Nagpur, Bikaner, Secunderabad and Shailu where the firm in the past had business. Bikaner, Secunderabad and Shailu were outside British India at the relevant time. The sources of the assessee's income in the year of account were speculation, allowance from Government as treasurers, house properties and dividends. 3. In the course of the assessment for the year 1942-43, a question of setting off the profits of the year of account against loss of the immediately preceding year came up for consideration by the Income- tax Officer. In paragraph 3 of his order, the Income-tax Officer observed: "Last year the assessee was in net loss of Rs. 53,078, which has been carried forward. It is to be split up in the proportion of the individual British Indian business loss, the foreign business loss and the share loss. The loss from the individual British Indian business was Rs. 2,62,012, and that from the foreign business Rs. 2,200. The ....
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....points raised by the assessee in his appeal before the Tribunal for the assessment year 1948-49 was with regard to the imposition of tax on capital gains. He sold during the year of account ending Diwali of 1947 four houses which had come to his share on 30th October, 1940, on distribution of the assets of the firm of R.D. Bansilal Abirchand, Kamptee, of which he was a partner. Three of the houses were sold at a profit of Rs. 16,400. The assessee's contention was that the profit was covered by the second proviso to section 12B(1) of the Act. The Tribunal held that this proviso was not applicable since neither the assessee nor a parent of his was in possession of the houses for 7 years. The Tribunal also held that the provision of section 12B(1) of the Act was intra vires. The following questions of law arise from the order: "(1) Whether section 12B of the Indian Income-tax Act of 1922 is ultra vires the Indian Legislature? (2) Whether on the facts and in the circumstances of the case the profit of Rs. 16,400, on the sale of the ....
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....l at Judcharia in the Nizam State itself. As regards the houses, it is contended that the assessee was a co-owner as there was no registered partition deed or a registered deed of dissolution of the partnership, and the transfers were effected by all the members jointly. These facts were not put up before the Taxing Authorities at any time, and as an entirely new case is now sought to be made out, the application cannot be entertained and is dismissed. 7. The first question raised by the assessee is whether he is entitled to raise a question with regard to the determination of loss for the assessment year 1941-42 in the course of proceedings for the assessment year 1942-43 when the loss brought forward from 1941-42 was being set off. A similar question arose in All India Groundnut Syndicate Ltd. v. Commissioner of Income-tax ([1954] 25 I.T.R. 90) and was answered as below: "It is then urged that inasmuch as the loss was not computed in the relevant year of assessment, there is no right left to the assessee in the assessment year 1948-49. That contention, again, is based upon a misapprehension. The ....