TaxTMI 
TaxTMI 
1991 (10) TMI 78
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of time for filing the return. There is also no evidence on record that the ITO impliedly granted time. 3. The ITO had stated in the assessment order after computing the loss that since the return has been filed after the stipulated time the net loss computed above is not brought forward to the next year. In the first appeal the CIT (Appeals) confirmed the same. The appellant is now before us in second appeal. 4. It is strenuously contended by the learned counsel for the assessee that carry forward of determined loss is his " vested right " under section 72 and the Legislature cannot by enacting section 80 take away or abridge such vested right by imposing conditions that the return of loss should be filed within the period laid sown und....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... S.C. Sen submits that section 80 is a mandatory provision and it starts with a " non-obstante clause " and, therefore, overrides the provisions of section 72 of the Act. The appellant should have followed the law and then he would have been entitled to the benefit of section 72. The question of following rules of natural justice or giving any hearing to the appellant on his failure to comply with law is not necessary at all and the lower authorities have not committed any mistake for which the assessee can come up in appeal before the Tribunal. 6. We have heard both the parties and we feel that the appellant cannot succeed in this appeal. We do not agree with the counsel for the appellant that carry forward of determined loss is a " veste....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry ". No authority has been cited before us except the decision of the Kerala High Court reported in 191 ITR 346 wherein their Lordships have observed that the courts may in certain facts and circumstances interpret the word " shall " as being directory and not " mandatory ". As to how mandatory and directory enactments have to be construed the law has been clearly and succinctly laid down by Lord Halsbury in Article 656 to the effect that " Where a statute requires an act to be done at or within a particular time, or in a particular manner, the question arises whether the validity of the act is affected by a failure to comply with what is prescribed. If it appears that Parliament intended disobedience to render the act invalid, the provisi....