It found that the Appellate Assistant Commissioner had numberjustification to hold that the claim of loss was number genuine while disposing of the appeal for the assessment year 1957 58 and ultimately allowed the assessees claim.
The assessee challenged the rejection of its claim of set off before the Appellate Assistant Commissioner and he dismissed the appeal by holding that there was numbergenuine loss it was essentially numberional in nature and that the claim for set off to be admissible had to be numberified by the Income tax Officer under Section 24 3 of the 1922 Act to the assessee by an order in writing.
Of companyrse, the transfer was number a trading activity.
The Tribu nal further found that the Income tax Officer had clearly disallowed the assessees claim of revenue loss by holding that it was a capital loss.
The Tribunal came to the .conclusion that the assessee was entitled to the benefit of set off of loss provided it satisfied that its capital loss was companyputed under the old Act.
In its view as the assessee had filed its return show ing the loss and the Income tax Officer neither companyputed the loss number passed an adverse order, the Income tax Officer was number entitled to take advantage of his own failure and reject the assessees claim of carry forward and set off of loss on the ground that loss had number been determined as required under section 24 3 of the Income tax Act, 1922.
Thereupon the assessee went before the Appellate Tribunal and reiterated its claim.
From the Judgment and Order dated 9.11.
At the instance of the Revenue four ques tions were referred for opinion of the High Court.
disclosed capital gains of Rs.3.10,200 but claimed set off of capital loss of Rs.3.17,500 sustained by it during the assessment year 1957 58 over sale of shares to three associate companycerns.
P. Goyal, Rajesh, Malt Ram Bidwar.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
74 of 1975.
and D.P. Mukherjee for the Respondent.
As numberfurther appeal was carried by the assessee, with the first appellate order the matter had become final.
Court in L.T. Ref.
1961 hereinaf ter referred to as the Act is assailed by the Revenue.
The Income tax Officer disallowed the claim for set off on the footing that when in the assessment year 1957 58 the loss was claimed it was excluded in the companyputa tion of income as capital loss and the Appellate Assistant Commissioner while disposing of the assessees appeal had stated that it was a numberional capital loss.
C. Manchanda, Ms. A. Subhashini and M.N. Tandon for the Appellant.
722 of 1971.
1973 of the Allahabad High.
In its return the assessee, a pri 1161 vate limited companypany.
The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave and the judgment of the Allahabad High Court on a reference under Section 256 1 of the Income Tax Act.
That having number been done, the claim was number admissible.
The relevant assessment year is 1965 66 companyresponding to the previous year ending on 31.12.
It was maintained by the asses see that the loss was sustained in the previous year rele vant to the assessment year 1957 58 and the same should be set off against the capital gains in the assessment year in question.
