1999 PLP 1600 (PTD)

A.R. TIWARI, J.

The applicant (Commissioner of Income-tax, Bhopal); has filed this application under section 256(2) of the Income Tax Act, 1961 (for short "the Act"), seeking a direction to the Tribunal to state the case and to refer the undernoted question, labelled as of law, on rejection of the application registered as R.A. No.71/Ind. of 1992 on August 10, 1992, for the assessment year 1984-85 arising out of the order, dated February 10, 1992, passed in I.T.A. No.224/Ind. of 1988 ,for our consideration and opinion: "Whether, on the facts and in the circumstances of the case, and on interpretation of the relevant provisions of the statute, the Income-tax Appellate Tribunal was justified in holding that the assessee was entitled to carry forward the losses though the return was' belated?" The facts lie in a narrow compass. The assessee filed its return of loss on March 28, 1995. As the return was filed beyond the time prescribed under section 139(1) and was not in accordance with the provisions of section 139(4), the Income-tax Officer denied the carry forward of the loss. In appeal, the Commissioner of Income-tax (Appeals), relying on the decision in Cooperative Marketing Society Ltd. v. CIT (1983) 143 ITR 99 (MP), directed to carry forward the loss. Aggrieved, the applicant/Department filed the appeal before the Tribunal, which was dismissed. The applicant then filed an application under section 256(1) of the Act which was rejected. Thereafter, the applicant has filed this application under section 256(2) of the Act proposing the above noted question of law. We have heard Shri D.D. Vyas, learned counsel for the applicant/Department, and Shri K.N. Puntambekar, learned counsel for the non-applicant/assessee. Shri Vyas submitted that the Tribunal committed an error in placing reliance on Cooperative Marketing Society Ltd. v. CIT (1983) 143 ITR 99 (MP), as the same was on different facts and based on a return filed under section

148. He submitted that in an identical matter, the Kerala High Court in CIT v. R. Chandran (1988) 174 ITR 256, directed the Tribunal to state the case and refer the question of law. Shri Puntambekar, on the other hand, submitted that the question did not arise out of the order. After considering the submissions, we do not examine the question in detail as we are satisfied that this is a fit case where the Tribunal should be directed to state the case and refer the aforesaid question as it needs to be considered and answered as to what is the effect and impact of the return being belated. Accordingly, we allow this application and direct the Tribunal to state the case and refer the aforesaid question of law. As the matter is quite old, we further direct the Tribunal to make an endeavour to comply with the direction within a period of six months from the date of the receipt of the copy of this order. Transmit a copy of this order to- the Tribunal for necessary action. We make no order as to costs. Counsel fee for each side is, however, fixed at Rs.750, if certified. M.B.A./2001/FC Application allowed