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Constitutional Petition No. 118 of 1974, decided on 5th July, 1982.

----S. 24(2)-Losses against profits in subsequent years-Set-off of Assessee challenging order of Commissioner. Income-tax refusing to interfere with orders of assessment for years 1964-65, 1965-66 and 1967-68-Assesses alleging acquiring vested right under S. 24(2) for carrying forward excess amount of losses found in year 1962-63 for adjustment against profits and gains ire subsequent years-Assessment orders for years 1953-64 to 1967-68 appealable - Petitioner preferred appeals only in respect of assessment order for year 1966-67 and 1967-68 but question of carrying forward losses of previous years not agitated therein Held, orders of assessment became final under law arid in circumstances, refusal by Commissioner of income-tax to interfere based on sound and cogent reasons.

Grindlays Bank v. Commissioner of Income-tax I. L. T. L. C. No. 157

Nasim Ahmad Khan for Petitioner.

Hyder Ali Pirzada for Respondent.

Date of hearing: 13th April1, 1982.

,--The petitioner has challenged in this petition the revisional order of Commissioner of Income-tax, Central Zone, Karachi dated 3-9-1979, whereby he refused to interfere with the orders of assessment 3r the years 1964-65, 1965-66 and 1967-68. The order is assailed by the learned counsel for the petitioner or: the sole ground that the petitioner had acquired a vested right under section 24(2) of the Income-tax Act for carrying forward the excess amount of losses found in the year 1962-63, for adjustment against the profits and gains in subsequent years.

The admitted position in the case is that the petitioner which is a foreign based company was assessed to Income-tax in the year 1962-63 as a resident and ordinary resident company in Pakistan and therefore the world income and losses of the company for that year were taken into account. The company in that year was found to have made a profit of 34,242 from its business in Pakistan as against the world losses of Rs. 16,62,565 with the result the total world losses for that year after deducting the profit were found to Rs. 16,29,319. However, in the sub-sequent years namely 1963-64, 1964-65, 1965-66, 1966-67 and 1967-68 the company was assessed as a non-resident Company and as such the world losses found in the year 1962-63 were not taken into consideration. In the assessment year 1963-64 the total loss was found to be Rs. 2,280. For the subsequent year 1964-65 the total Income was found to be Rs. 37,828 out of which the loss of Rs. 2,280 sustained in the previous year (1963-64) was deducted and then the total income was assessed at Rs. 35,545 for 1964-65. -,similarly in the year 1965-66 the total net income was computed in the assessment order at Rs, 15,515 However, in the assessment year 1966-77 the company was found to have suffered loss and therefore a sum of Rs. 6,706 was carried forward for set off under section 24(1) of the Income-tax Act. In the following year namely 1967-68, the Company again made a total income of the sum of Rs. 94,840 and after deducting the sum of Rs. 6,706, which was brought forward from the assessment year 1966-67 as losses the taxable income was found to be RG. 88,134. At this stage it appears the petitioner for the first time applied to the Income-tax Officer concerned for rectification of the assessment orders for the years 1964-65, 1965-66 and 1967-68, on the ground that in the year 1962.-63 the Company had suffered world losses of Rs. 16,26,319, which was liable to be carried forward from year to year until adjusted under section 24(2) of the- Income-tax Act. The stand of the petitioner in this application was that the losses suffered in the year 1962-63 were to be carried forward every year until adjusted but no prayer was made for rectification of the assessment order for year 1963-64 and 1966-e7. This application was rejected by the I. T. O. on 15-2-1971 on 'the ground that the status of the Company was changed from resident to non-resident from the year 1963-64, and therefore it was not entitled to claim adjustment of world losses against its income in Pakistan. Making this order of I. T. O. dated 15-2-1971 as a base the petitioner submitted a revision application before the Commissioner of Income-tax, Central Zone, Karachi. The Income-tax Commissioner refused to interfere with the assessment orders for the year 1964-65, 1965-66 and 1967-68 on the grounds that the assessee neither raised the question of carrying forward of the losses for the year 1962-63 to the subsequent years namely 1963-64 and 1964-65 nor challenged the same in the manner provided by law and therefore these assessments attained finality. It was also found by the Commissioner of Income-tax that when the Company was assessed in 1963-64 and 1966-67 the world loss for the earlier years were not carried forward but the petitioner raised no objection to it. It was also observed by the Commissioner of Income-tax that against the assessment orders for the years 1966-67 and 1967-68, appeals were filed before the Appellate Assistant Commissioner but the question of carrying forward of earlier years losses was not agitated then also. On these reasonings the Commissioner Income-tax refused to interfere with the order of assessment in exercise of his revisional powers.

We do not find anything wrong in the order of Commissioner of income. tax in refusing to exercise his revisional power in these circumstances. The assessment orders for the years 1963-64 to 1967-68 were appealable under section 30 of the 1. T. Act. According to the order of Commissioner of Income-tax the petitioner bad preferred appeals only in respect of assessment order for the years 1966-67 and 1967-68 but in these appeals too the question of carrying forward of losses of the previous years was not agitated before .the appellate authority. In these circumstances we are satisfied that refusal by the Commissioner of Income-tax to interfere with these Ordinance of assessment which had become final under the law was based on sound and cogent reasoning and no, exception could be taken to it Besides, the point raised by the learned counsel for the petitioner before us has been directly decided and answered in the case of Grindlays Bank v. Commis sioner of Income-tax I. L. T. L. C. No. 157 of 1973, decided by a Division Bench of this Court or. I0-8-81. The learned Counsel attempted to argue before us that the above decision has not laid down the law correctly. We are not in clined to go into this question as we feel that the petitioner otherwise has not succeeded in making out a case for interference by us in the. Constitutional jurisdiction with the order of Commissioner dated 3-9-1973. For the above reason we dismiss this petition but leave the parties to beat their respective costs.

Petition dismissed.

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