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Western India Oil Distribution Co. Ltd. vs Commissioner Of Income-Tax, Bombay-I on 4 July, 1978 cites

Commissioner Of Income-Tax, Bombay ... vs Western India Oil Distributing Co. Ltd. on 6 March, 1970

21. We have now to apply the principle enunciated in the said case to the facts elicited by the Tribunal in the statement of case, which we have briefly set out earlier in this judgment. It would appear that for all the years which are mentioned in the question referred to us, i.e., 1943-44 to 1954-55, the correct head of income of the assessee was not "Income from other sources" but "Income from business, profession or vocation". This was a finding of the Tribunal which has been accepted by the Commissioner. If that was so, it would follow that the unabsorbed depreciation in any of these years was liable to be carried forward and the assessee was liable to have the benefit of the special provision contained in the proviso to s. 10(2)(vi) of the Indian I.T. Act, 1922. The assessee is not precluded from claiming a set-off in respect of the same for the assessment years in question. However, as indicated earlier, we find that there is some difficulty for the last of the years in question, i.e., 1954-55. It is found that in this year the assessee had obtained a distinct pecuniary advantage by assessment of its income under s. 12 and not under s. 10. By reason of such assessment the assessee contended that the provisions contained in the proviso to s. 10(2)(vii) were not applicable when its income was being assessed under s. 12; an this point was decided in favour of the assessee in the decision of the High Court, viz., in CIT v. Western Indian Oil Distributing Co. Ltd. [1971] 81 ITR 32 (Bom), which we have referred to earlier. For this year, it was submitted on behalf of the revenue that the revenue was not merely resting its argument on the contention that the assessment under s. 12 for this year should be regarded as final, merely because it was so held by the ITO and that the assessee had not gone further; it was submitted that in addition to such argument, which was equally available for the other years as for this year, the revenue relied upon the fact that the assessee had taken benefit of the fact that its income was assessed under s. 12 and that where it had taken such a benefit it could not subsequently be permitted to submit that the correct section or the head under which its income ought to be assessed is s. 10. Such estoppel was claimed against the assessee on the well-known principle of "approbate and reprobate". Mr. Munim submitted that the assessee had not sought assessment under s. 12 but that when the department assessed its income as "income from other sources" under s. 12, the assessee was entitled to make the submission that the provisions of s. 10(2)(vii) were not applicable. It is clear to us that for this assessment year, i.e., 1954-55, the assessee had secured a definite pecuniary advantage by reason of its income being assessed as "income from other sources" under s. 12; whilst retaining that pecuniary advantage it cannot be permitted to re-agitate the question in a later year and submit that correct head of income was not under s. 12 but under s. 10. For this year, then, because of this special circumstances, the assessee would not be entitled to carry forward the unabsorbed depreciation, if any, for that year and set off the same against the income for any succeeding year.
Bombay High Court Cites 5 - Cited by 2 - Full Document

Commissioner Of Income-Tax, Uttar ... vs Manmohan Das (Deceased) on 5 November, 1965

18. It was submitted by counsel for the assessee that a similar approach must be followed by us and applied to the facts of the case. It is true that in the assessment years under consideration the ITO held that the correct head of the assessee's income was "Income from other sources" under s. 12 and in some of the assessment years it was on this express footing that the carrying forward of the unabsorbed depreciation was not permitted, whilst in others, excepting the first three (as we have pointed out earlier), the only conclusion reached by the ITO was to hold that the assessee was not liable to pay tax but without computing or specifying that there was unabsorbed depreciation liable to be carried forward. It was submitted on behalf of the assessee that although the assessee had not canvassed the issue further or gone in appeal from the ITO's decisions in these years, any such finding was not binding on the assessee and that the issue could be gone into or even re-agitated by the assessee for the years in question when set-off was claimed. In these years, i.e., the later years when set-off is claimed, according to counsel for the assessee, it would not be open for the department to submit that the matter had become final for these earlier years by reason of the assessment orders for these years, against which appeals had not been preferred. It appears to us that this submission will have to be accepted in view of the decision of the Supreme Court in Manmohan Das' case [1966] 59 ITR 699 from which we have attracted a passage earlier. In order to satisfy ourselves we referred to standard text books on the subject and found that various authors on the subject had understood the decision of the Supreme Court in the same sense in which we have understood it. The position as to quantification of the amount of loss appears to be different.
Supreme Court of India Cites 11 - Cited by 113 - Full Document
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