1. The present appeal is from the decision of the High Court refusing to exercise powers under Section 256(2) of the Income-tax Act, 1961 (the "Act"), in view of the earlier decision of the same High Court, namely (CIT v. Pratapgarh Cold Storage and Ice Factory [1982] UPTC 129). The question which arose for decision was :
"Whether, the assessee will be entitled to the benefit for carry forward of loss to be set off in subsequent years even if the return of loss is filed beyond the time prescribed under Section 139(3) of the Income-tax Act, 1961 ?"
2. Learned counsel appearing on behalf of the appellant has drawn our attention to the fact that the decision in Pratapgarh Cold Storage [1982] UPTC 129 has proceeded on the basis of this court in CIT v. Kulu Valley Transport Co. P. Ltd. [1970] 77 ITR 518.
3. It appears that the decision in Kulu Valley Transport was based upon an interpretation of the provisions of Section 22 of the Indian Income-tax Act, 1922. The language of Section 22 and Section 139, Sub-sections (3) and (4) of the Act do not prima facie appear to be pari materia and it cannot be said that the question raised by the Revenue is not an arguable one.
4. We, accordingly, allow the appeal and set aside the order of the High Court and direct the Tribunal to state the case and refer it to the High Court for its decision under Section 256(2) of the said Act.