TaxTMI 
TaxTMI 
2005 (1) TMI 92
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....the case and in law, the Tribunal was justified in holding that the share of loss from joint venture could be set off against other income in the assessment of the member of joint venture/AOP, as assessed in the assessment of joint venture/AOP even though the other income of the AOP is above taxable limit?" Heard Shri R. L. Jain, learned senior counsel, with Ku. V. Mandlik, learned counsel for the Revenue, and Shri G. M. Chafekar, learned senior counsel with Shri M. Phadke, learned counsel for the assessee. At the outset, we may consider appropriate to mention as to how and in what manner the question referred to supra, was dealt with or we may say decided by the three tax authorities, i.e., the Assessing Officer, Commissioner and Tri....
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....der of the Commissioner had this to say by their order dated September 24, 1998 (annexure C), on the question: "Paragraph l1-Regarding the taxability of loss from joint ventures we find that during the assessment proceedings, the Assessing Officer had made pointed queries about the allowability or otherwise of the assessee's share of loss in joint ventures. The assessee brought on record the documents relating thereto explaining the reasons as to why the assessee entered into joint venture agreements and the factors responsible for incurring loss in joint ventures. Both the joint ventures are assessed to tax as AOP in Bombay. The shares of the members are determinate which is evident from the copies of intimation under section 143(1)(a),....
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....e a case of substitution of the judgment of the Commissioner for that of the Assessing Officer who passed the order unless the decision is held to be erroneous. As stated earlier, the assessment is not erroneous on this issue, as revision of assessment on the point is liable to be vacated. We do so and order accordingly." It is with this background now the Revenue is before us in reference under section 256(1) ibid. What we notice from the statement of case drawn by the Tribunal and the aforementioned orders is that how the issue involved in the case was decided by the authorities. The question that arises for consideration in this reference is how to proceed to tax the profit or loss (in this case loss) suffered by the AOP in the han....
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....g the case of the assessee in the light of any of these three provisions referred to supra. When the Commissioner decided to set aside the order of assessment finding it to be against the interests of the Revenue, i.e., erroneous and prejudicial to the interests of the Revenue, he did set aside the order of the Assessing Officer but again without taking note of these provisions. Lastly, the Tribunal too set aside the order of the Commissioner but again without taking note of and/or without referring to any of the relevant provisions of the aforementioned sections. It is only in the statement of case, one section 86(v) as if it had its application was only referred and that too while taking note of the submission of learned counsel for the R....