Grover, J. - (1.) The common question which arises in these appeals by certificate, is whether speculative losses can be set off against profits from any other business activity under S. 10 in spite of the first proviso to S. 24 (1) of the Income Tax Act, 1922.
(2.) The facts in C. A. 1761/67 in which the question in the above form was referred, the language of the question being somewhat different in the other appeal, may be stated. The assessee who is an individual derived income from three sources i.e. property, shares in joint stock companies an commission agency business and shares in partnership firms. The accounting year relevant to the assessment year 1953-54 was the period from October 20, 1951 to October 8, 1952. In the personal business of commission agency, the assessee returned a net profit Rs. 2761/-. In arriving at this figure the net share of loss of Rs. 11,075/- from the firm of Kamta Prasad Raghunath Prasad in which the assessee was a partner, was claimed. The Income-tax officer did not go into the details but ignored the figure in the absence of information from the Income-tax Officer assessing the aforesaid firm. Before the Appellate Assistant Commissioner it was submitted that the actual share of loss was Rs. 13,232/- and it included a sum of Rs. 8,669/- representing loss suffered in speculative dealing in silver paid through the firm Kamta Prasad Raghunath Prasad. The Appellate Assistant Commissioner, after examining the details of the loss, directed the Income-tax Officer to exclude a profit of Rs. 1415/- from the speculative transactions and to carry forward the net loss of Rs. 7,254/- for setting it off against the income of the assessee from speculative dealings in subsequent years. Before the appellate tribunal there was no dispute about these figures. What was contended was that the loss of Rs. 7,254/-should be set off against profit from other business. The tribunal rejected this contention following the decision in Keshavlal Premchand vs. Commissioner of Income-tax, Bombay, 1957-31 ITR 7. Thereafter the assessee moved the tribunal for making a reference to the High Court. The High Court did not accept the view in Keshavlal Premchand's 1957-31 ITR 7 which has been followed in several other decisions by other High Courts.
(3.) Now certain provisions of the Act may be noticed before the case law is discussed. Section 6 gives the heads of income chargeable to income-tax which are six in number. Section 7 deals with the first head "salaries; Section 8 with second head "interest on securities"; Section 9 with "income from property" and S. 10 provides for liability to tax under the head "profits and gains of business, profession or vocation which is the fourth head given in S. 6. It is unnecessary to go to the 5th and 6th heads. Section 24 provides that where any assessed sustains a loss of profits or gains in any year under any of the heads mentioned in Section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year. In the year with which we are concerned in the present case there was a proviso which was, at that time, the second proviso but it became the first proviso after the enactment of the Taxation Laws (Extention to Jammu and Kashmir) Act 1954. This proviso, at the material time, stood as follows: "Provided further that in computing the profits and gains chargeable under the head 'Profits and gains of business, profession or vocation', any loss sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions." In Keshavlal Premchand's case, (supra) the assessee had suffered a loss in speculative business carried on by him in the year of account. His contention was that he was entitled to take this loss into account in arriving at the profits and gains of his business (of non-speculative nature). Mr. Palkhiwala, who argued the case before the Bombay Court, put forward the view that S. 24 (1) read with proviso referred only to a case where the assessee was claiming the right to set off the loss which he had suffered under one head against a profit which he had earned in another head. The section therefore had no application when the assessee wanted to adjust or set off a loss against a profit under the same head. It was urged by him that the assessee in claiming to set off his speculative loss against his business profits under the same head was not claiming the benefit of any right conferred by S. 24 (1) and therefore the proviso had no application. The argument was elaborated further by referring to the true nature and function of a proviso which was to except or take out a particular portion from the field dealt with by the section. Chagla C. J., who delivered the judgment of the Bombay Bench, had no difficulty in coming to the conclusion that on the language of the proviso itself and on the scheme of the Act the legislature in enacting the so called proviso was enacting a substantive provision dealing with the made of computing the profits and gains chargeable under the head "profits and gains of business, profession or vocation" and that the legislature had provided that when profits and gains were computed the loss sustained in a speculative transaction must not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions. The learned Chief Justice further referred to the mischief which was aimed at by the legislature in enacting the proviso. In recent times business-men were known to buy speculative losses in order to reduce their profits and the legislature wanted to put an end to that mischief which could only be done by preventing the assessee from reducing his profits by speculative losses. The Bombay decision was followed by the Madhya Pradesh High Court in Commissioner of Income-tax Nagpur and Bhandara vs. Ram Gopal Kanhaiya Lal, 1960-38 ITR 193 as also by the Division Bench of the Punjab High Court in Manohar Lal Munshi Lal vs. Commissioner of Income-tax, New Delhi, 1962-44 ITR 618 . The matter ultimately went to a Full Bench of the Punjab High Court in Commissioner of Income-tax vs. Ram Swarup, 1962-45 ITR 248 (FB) in which after reviewing the entire case law and examining the various aspects relevant to the question the view expressed by Chagla C. J. in the Bombay case was accepted as correct. Similarly in Jummar Lal Surajkaran vs. Commissioner of Income-tax, Andhra Pradesh, 1963-47 ITR 809 (A. P.); Hanuman Investment Co. vs. Commissioner of Income-tax, West Bengal, Calcutta, 1968-48 ITR 915 (Cal) and Joseph John vs. Commissioner of Income-tax, Kerala, (1964) 51 ITR 322 (Ker) the considerations which prevailed in Keshavlal Premchand's case were accepted as correct. ;