(1) The petitioner is a company registered on 4-12-1954 and if commenced production on 1-9-1956. It has adopted the calendar year for purposes of accounting. For the assessment year 1957-58, it submitted a return on 12-3-1959. Actually it made a trading profit of Rs. 64131 for that year. But it claimed Rs. 56280 as depreciation allowance and Rs. 1,34,317 as development rebate so that its returns showed a loss. The first respondent by an order of his dated 18-11-1961, considered the return as null and void on the view that it was not filed within the assessment year and that in view of the provisions of S. 22(2-A) of the Income tax Act 1922, which according to him applied to the case, the loss returned by the return of the petitioner would have to be ignored and not carried forward. The petition is to quash the order. There is a further prayer that this court should direct the first respondent to set off the loss of prior years in the assessment for 1957-58.
(2) In support of the petition it is contended that the view of the first respondent cannot be supported. Learned counsel for the petitioner candidly stated that so far as development rebate is concerned, no question of carrying it forward can arise, as there is no specific enabling provision in the Act. But he says that the carrying forward of depreciation allowance is not under S. 24(2) and the view of the first respondent to the contrary is incorrect. If the matter were res integra, it would have been necessary for this court to deal with the point in greater detail, Commr. of income tax, Madras v. Speed-a-away (P) Ltd., 1966 1 ITJ 9 decided by a Division Bench of this court to which one of us was a party, had occasion to consider the ambit and effect of S. 10(2) (vi) and proviso (b) thereto in relation to S. 24. It was there held that the scheme of carrying forward of unabsorbed depreciation and set off envisaged by proviso (b) stands by itself and is independent of S. 24(2), which has nothing to do with that item of allowance and contains only a rule of priority Proviso (b) to clause (vi) of S. 10(2) is broadly speaking to the effect that unabsorbed depreciation of the previous year shall be carried forward to the subsequent year and be deemed to be part of similar depreciation of such subsequent year and so on for succeeding years and set off thereof allowed on that basis. S. 24(2) does not concern itself with depreciation allowance except that proviso (b) to clause (iii) directs that where such allowance is to be granted effect shall first be given to sub-sec. (2). In other words, as we already indicated, allowance for depreciation under S.10(2)(vi) will follow and not precede the set off permissible under S. 24(2). The view in 1966 1 ITJ 9 receives support from Commr. of Income tax Calcutta v. Jaipuria China Clay Mines, : 59ITR555(SC) . The Supreme Court there observed-
'But it is wrong to assume that S. 24(2) also deals with the carrying forward of depreciation. This carry forward having been provided in S. 10(2) (vi) and in different manner, Sec. 24(2) only deals with losses other than the losses due to depreciation'.
It follows, therefore, that the first respondent was not correct in his view that depreciation would fall within S. 24(2).
(3) S. 22(2-A) will itself be attracted only if three conditions are satisfied; (1) the person concerned should not have been served with a notice under sub-sec (2) of S. 22; (2) he must have sustained a loss of profits or gains in any year under the head 'profits and gains of business, profession or vocation' and (3) such loss or any part of it would ordinarily have been carried forward under S. 24(2). It is only where these conditions are satisfied, sub-sec, (2-A) will have application and in order that the assessee may have the benefit of carrying forward of loss in any subsequent assessment must comply with these requirements. If depreciation did not fall within the ambit of S.24(2), it is obvious that the set off of carried forward unabsorbed depreciation will not depend upon compliance of S. 22(2-A).
(4) For the Revenue Mr. Balasubramaniam argues that the first respondent rightly ignored the return because it was no return at all. We do not think that the first respondent treated the return as null and void. He had in mind, as we see from his order, only the application of S. 22(2-A). In any case we find no difficulty in rejecting the contention for the revenue. In our opinion, the return would squarely fall within S.22(3) Commr. of Income tax v. Ranchhoddas Karsondas, : 36ITR569(SC) which does not accept the observation in Udaya Ltd. v. Commr. of Income tax, Madras, : 36ITR469(Mad) (FB) justifies the view. It was held there that a return showing income below the taxable limit submitted voluntarily in answer to the general notice under S. 22(1) of the Income tax Act was a good return, which could not be treated as a mere waste paper. This is such a case and the return was before the assessment was made and within four years of the assessment year. See Commr. of Income tax v. Raman Chettiar, : 55ITR630(SC) . Mr. Balasubramaniam attempted to cover a wider ground which, as we think, is anticipatory. How the first respondent would hereafter deal with matter of this petition for certiorari. The first respondent has jurisdiction to deal with the return according to law and it is neither fair nor necessary to anticipate his possible view in dealing with the return and, on that basis, express our view in regard to it. As we mentioned, the only point that was pressed before us for the petitioner was that the first respondent was not correct in his view that depreciation was allowable under S. 24(2) and therefore his order was vitiated.
(5) The petition is allowed and the order of the first respondent is set aside. He will be at liberty to deal with the return in accordance with law. The petitioner is entitled to its costs counsel's fee Rs. 250.
(6) Petition allowed.