1982 (4) TMI 31

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.... is also a partner should be treated as the loss of the assessee and set-off allowed against his income ? " The facts briefly stated are that the assessee and his wife, Smt. Raj Kunwar Rai, are partners in a firm carrying on business in the name of M/s. Ganpat Pannalal, Harda. In the assessment year 1974-75, the assessee claimed that the loss incurred by the wife in relation to, her share in the said partnership be deducted from the total income of the assessee. This claim of the assessee was not accepted by the ITO. The view of the ITO was confirmed by the AAC. The Tribunal, however, in further appeal, following the decision of the Mysore High Court in Dr. T.P. Kapadia v. CIT [1973] 87 ITR 511, allowed the loss of the wife to be deducte....

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....he Mysore High Court was also adopted in circular issued by the CBR which was in force from 1944 to 5th April, 1972. Reference in this connection may be made to CIT v. B. M. Edward, India Sea Foods [1979] 119 ITR 334 (Ker), where the circular was discussed by a Full Bench of the Kerala High Court. The view taken by the Gujarat High Court is criticised by Kanga and Palkhivala in their commentary on the Income Tax Act and the view taken by the Mysore High Court is commended. The following extract from Vol. 1(7th Edn.), p. 599, is relevant on this point : "In Dayalbhai Vadera v. CIT [1966] 60 ITR 551, the Gujarat High Court held that in this sub-section 'income' does not include a loss and, therefore, the share of loss apportioned to a spou....

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....he correct construction. By the Finance Act, 1979, Expln. 2 has been added in s. 64 which in specific terms says that for the purpose of the section " income " includes loss. Speaking generally, subsequent legislation cannot be used for construction of an earlier statute but if an enactment is really ambiguous, subsequent legislation can be used as a parliamentary exposition of the former (See Craies on Statute Law, 7th Edn., pp. 147-148). This principle was recently applied by the Supreme Court in construing s. 15(b) of the Central Sales Tax Act, as it: stood before its amendment by Act No. 61 of 1972, and the amendment introduced by this amending Act, though not retrospective, was used as a parliamentary exposition of its intent contained....