2001 PLP 3387 (PTD)

(Appeals from the judgment and order, dated July 3, 4, 1978 of the Bombay High Court in I.T.R. No.37 of 1969). ‑‑‑‑Depreciation‑‑‑Commercial asset‑‑‑Depreciation allowed on basis of business income‑‑‑Assets requisitioned during war‑‑‑Income assessed under head "Income from other sources" ‑‑‑Release of asset and assessee resuming business‑‑‑Carry forward and set off‑‑‑No right to claim that income assessable for earlier period during requisition was business income‑‑‑Indian Income‑tax Act, 1922, Ss. 10(2)(vi) &

12. From the decision of the High Court [see (1980) 126 ITR 4981 that, since the Tribunal had found that the income of the assessee was assessable under section 10 of the Indian Income‑tax Act, 1922, for the assessment years 1943‑44 to 1953‑54, but for the assessment year 1954‑55, the assessee had secured a pecuniary advantage by reason of its income being assessed under the head "Income from other sources", and for that reason benefit of carry forward was denied to the assessee, while retaining that advantage the assessee could not be permitted to reagitate that question and submit that the income for that year had to be reassessed under the correct head "Business" under section 10, and, therefore, the unabsorbed depreciation for the ;years 1943‑44 to 1953‑54 could be allowed to be set off against business income arising in the assessment years 1959‑60 to 1962‑63, but not that relating. to the assessment year 1954‑55, the Department preferred appeals to the Supreme Court. The' Supreme Court dismissed the appeals affirming the decision of the High Court that if the quantification of loss is properly and duly notified by following the prescribed procedure, such quantification may be impressed with the principle of finality, but the principle of finality did not apply to the, determination of the source of income and to a decision whether the loss can or cannot be allowed to be carried forward by reason of the determination of the source. CIT v. Manmohan Das (1966) 59 ITR 699 (SC) rel. Western India Oil Distributing Co. Ltd. v. CIT (1980) 126 ITR 497 affirmed. Shri J. Ramamurthy, Senior Advocate (S. Rajappa, B.K. Prasad and C. Radha Krishna, Advocates. with him) for Appellant. S. Ganesh, Advocate and P.D. Tyagi, Advocate for J.B. Dadachanji & Co., Advocates for Respondent. We have heard Shri J. Ramamurthy, learned senior counsel appearing for the appellants in support of the appeal. WP have also perused the impugned judgment of the High Court. In the impugned judgment the High Court has held that if the quantification of loss is properly made and duly notified by following the prescribed procedure, such quantification may be impressed with the principle of finality if the matter is not carried further but the principle of finality as may be applicable to the question of quantification of the amount of loss does not apply to the determination of the source of income and to a decision whether the loss can or cannot be allowed to be carried forward by reason of the determination of the source. This view of the High Court is based on the judgment of this Court in CIT v. Manmohan Das (1966) 59 ITR

699. In our opinion, there is no infirmity in the impugned judgment of the High Court. The appeals are, therefore, dismissed. No orders as to costs. M.B.A./1043/FC Appeals dismissed.