Civil Appeal No 2034 of 1970
Appeal by special leave from the Judgment and order dated the 8th July 1969 of Calcutta High Court in ITR No 60 of 1968
D N Gupta for the appellant
G C Sharma O P Dua and section P Nayar for the respondent
The Judgment of the Court was delivered by GUPTA J
This appeal by special leave turns on the true meaning and scope of explanation 2 to sec
241 of the Income Tax Act 1922
The appellant hereinafter referred to as the assessee is a private limited company carrying on business in tea garden tools and requisites and also acting as agents for selling tea in fact the bulk of its income was from selling commission on tea
The assessment year in question is 1959 60
in the relevant previous year which ended on June 301958 the assessee for the first time in its history entered into certain transactions in jute
On April 17 1958 the assessee had contracted to purchase 1100 bales of B Twill and 2500 bales of corn sacks the contract for B Twill was with two parties Ms Raghunath  Sons P Ltd for 500 bales and Ms Mahadeo Ramkumar for 600 bales
The corn sacks were all purchased from Tulsider Jeweraj under three contracts for 800 bales 1000 bales and 700 bales respectively
On June 18 182 1958 the assessee entered into a contract with Ms Lachhminarain Kenoria  Co to sell the aforesaid quantities of Twill and corn sacks
The assessee had no godown for keeping the goods and had not handled them
The goods were in the godown of the mills and only the delivery orders addressed to the mills changed hands
The amount realised on sale to Ms Lachhminarain Kanoria  Co came to Rs 1049865 
The assessee had however purchased the corn sacks and B Twill for Rs 1148399
The transactions thus resulted in a loss of Rs 98534 to the assessee and the assessee claimed adjustment of this loss in the computation of its income for the assessment year 1959 60
The Income tax officer held that the transactions involving mere transfer of delivery notes and not actual delivery of the goods were of a speculative character as contemplated in explanation 2 to sec
241 and the loss could be set off only against speculation profits and as there were no speculation profits in that year he held that the loss would be carried forward and set off against speculation profits in the future
The Appellate Assistant Commissioner on appeal by the assessee held that the transactions were not speculative and the loss should be treated as business loss relying on two decisions of this Court Bayana Bhimayya and Sukhdevi Rathi vs The Govt
of Andhra Pradesh 1 and duni Chand Rataria vs Bhuwalke Brothers Ltd 2 The Department took an appeal to the Tribunal and the Tribunal relied on the decision of the Calcutta High Court in D M Wadhwana vs Commissioner of Income tax West Bengal3 to hold that this case came within the scope of sec
24 1 read with explanation 2 and restored the order of the Income tax Officer
On the application of the assessee the Tribunal referred to the High Court the following question of law 
Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the transactions described above entered into by the assessee were speculative transactions within the meaning of explanation 2 to section 24 1
The High Court answered the question in the affirmative and against the assessee
The correctness of that decision is challenged in this appeal
Section 241 so far as it is material for the purpose of this appeal is in these terms Where any assessee 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
Provided that in computing the profits and gains charge able under the head profits and gains of business profession or vocation  any loss sustained in speculative transactions 183 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 The second proviso is not relevant for the present purpose Explanation 1 Where the speculative transactions carried on are of such a nature as to constitute a business the business shall be deemed to be distinct and separate from any other business
Explanation 2 A speculative transaction means a transaction in which a contract for purchase and sale of any commodity including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips
The rest of the section is also not relevant Before us both sides admitted that the question is covered by the decision of this Court in Raghunath Prasad Poddar vs Commissioner of Income tax Calcutta1 where it was held that such transactions were not speculative transactions within the meaning of explanation 2 to sec
241
The learned counsel for the revenue however prayed for re consideration of the decision on a fresh examination of the problem
In Raghunath Prasad Poddar vs Commissioner of Income tax Calcutta supra the assessee a company dealing in jute and jute goods purchased pucca delivery orders in short PDOs in respect of gunny bags from various parties after paying the full price of the goods covered by the delivery orders and transferred those PDOs
to buyers after receiving the price fixed for the sale of those goods
The Tribunal following the decision in D M Wadhwana vs Commissioner of Income tax supra held that the sales in question were speculative and consequently the losses suffered by the assessee in these transactions could not be set off against the profits made by the assessee s non speculative business High Court on reference following its earlier decisions in D M Wadhwana s case and Manalal M Verma  Co P Ltd vs Commissioner of Income tax2 answered the questions referred to it which are similar to the question formulated in this case in favour of the revenue
This Court reversed the decision on appeal
The view taken in Raghunath Prasad s case appears to be based on three earlier decisions of this Court
Duni Chand Rataria vs Bhuwalke Brothers Ltd supra Beyanna Bhimayya and sukhdevi Rathi vs The Government of Andhra Pradesh supra and State of Andhra Pradesh vs Kolla Sreeramamurthy2
The reasoning in Raghunath Prasad s case proceeds like this 184 To effect a valid transfer of any commodity it is not necessary that the transfer in question should be followed up by actual delivery of the goods to the transferee
Even if the goods are delivered to the transferee s transferee the first transfer also will be a valid transfer
What has to be seen in such cases is whether the ultimate purchaser of the PDOs has taken actual delivery of the goods sold
lt is erroneous to think that if any transfer of the PDOs is not followed up by actual delivery of the goods to the transferee that transaction is to be considered as speculative
The following observation in Duni Chand Rataria vs Bhuwalke Brothers Ltd supra was relied on in support of the view taken The sellers handed over these documents like delivery orders to the buyers against cash payment and the buyers obtained these documents in token of delivery of possession of the goods
They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods
The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof In Duni Chand Rataria s case this Court was interpreting the words actual delivery of possession occurring in sec 21bi of West Bengal Jute Goods Future ordinance 1949
The question for determination in that case was whether certain contracts between the appellant and the respondents could be called contracts involving actual delivery of possession of the goods concerned
Referring to the definition of delivery in sec
22 of the Indian it was observed that this would include actual delivery as also symbolic or constructive delivery and having regard to the mischief which was sought to be averted by the promulgation of the ordinance to prevent persons who dealt in differences only and never intended to take delivery under any circumstances it was held that the intendment of the ordinance was that actual delivery of possession was actual delivery as contracted with mere dealings in differences and such actual delivery included within its scope symbolic and constructive delivery of possession
With respect these observations made in quite a different context do not appear to us to be of assistance in interpreting explanation 2 to sec
241 of the Indian Income Tax Act 1922 The other decision referred to in Raghunath Prasad s case Bayanna Bhimayya and Sukhdevi Rathi vs The Government of Andhra Pradesh supra was a case under the Madras General Sales Tax Act 1939
The appellant in that case who dealt in gunnies entered contracts with two mills agreeing to purchase gunnies at a certain rate 185 for future delivery and also entered into agreements with third parties by which they charged something extra from the third parties and handed over to them the delivery orders described as kutcha delivery orders
The mills however did not accept the third parties as contracting parties but only as agents of the appellants
The tax authorities treated the transaction between the appellants and the third parties as a fresh scale and sought to levy sales tax on this as well to which 13 the appellants objected saying that there was only one sale
It was held that a delivery order being a document of title to the goods cover cd by it possession of the document not only gave one the right to recover the goods but also to transfer them to another by endorsement or delivery and that there being two separate transactions of sale one between the mills and the original purchasers and the other between the original purchasers and the third parties tax was payable at both the points
In reaching this conclusion the court observed At the moment of delivery by the mills to the third par ties there were in effect two deliveries one by the mills to the appellants represented in so far as the mills were concerned by the appellants  agents the third parties and the other by the appellants to the third parties as buyers from the appellants
These two deliveries might synchronise in point of time but were separate in point of fact and in the eye of law
 Here also the only question was whether on the facts of the case there were two separate transactions of sale so that tax was payable at both the points under the Madras General Sales Tax Act 1939
The observation made in this context does not also seem to us relevant to the question under consideration in the appeal before us
Another authority on which the decision in Raghunath Prasad s supra case relies is State of Andhra Pradesh vs Kolla Sreeramamurthy supra which is also a case under the Madras General Sales Tax Act 1939
The respondent in that case a dealer in gunny bags purchased gunnies from the mills on terms of written contracts which were on printed forms
These contracts were entered into by brokers acting for the respondent who sent him Bought Notes  setting out the terms upon which the purchases had been effected from the mills
The mills having received a part of the purchase money in terms of the contract issued delivery orders directing the delivery of goods as per the contract
Instead of taking delivery himself the respondent endorsed the delivery orders and these passed through several hands before the ultimate holder of the delivery orders presented them to the mills and obtained delivery of the gunnies on payment
The question that arose for decision was whether the transactions entered into by the respondent were mere sales of delivery orders or sales of goods so as to bring them to charge under sec
3 of the said Act
At the date of the contract for purchase by the respondent the goods which were the subject matter of the purchase were not appropriated to the contract so that there was no completed sale since no property passed but only an agreement for sale
In considering the effect of 186 the position that the property in the goods passed to the ultimate endorsee of the delivery orders Mr Justice Ayyangar speaking for the Court relied on an English decision Butterworty vs Kingsway1 to hold that though the respondent and his transferees had not acquired any title to the goods the title acquired by the ultimate endorsee of the delivery orders went to feed their previously defective titles and ensured to their benefit
His Lordship further observed that this was the principle that formed the basis of the decision in Bayanna Bhimeyya s supra case
Here again the question that was considered has hardly any connection with sec
24 of the Indian Income Talc Act 1922 and the observations made in this case cannot be a guide to the solution of the problem arising in the case before us Sec
6 of the Indian Income Tax Act 1922 enumerates the heads of income chargeable to income tax
241 of the Act provides that where an assessee sustains a loss under any of these heads in any year he shall be entitled to have the loss set off against his income profits or gains under any other head in that year
This general provision is qualified by the first proviso which permits the set off of a loss in speculative business against the assessee s profits and gains i any in a similar business only
explanation 1 says that where the speculative transactions are of such a nature as to constitute a business I the business shall be deemed to be distinct and separate from any other business
Explanation 2 defines a speculative transaction as a transaction in which a contract for purchase and sale of any commodity is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity
The words actual delivery in explanation 2 means real as opposed to notional delivery
For income tax purposes speculative transaction means what the definition of that expression in explanation 2 says
Whether a transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this explanation
The definition of delivery in sec
22 of the which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the explanation
A transaction which is otherwise speculative would not be a speculative transaction within the meaning of explanation 2 if actual delivery of the commodity or the scrips has taken place on the other hand a transaction which is not otherwise speculative in nature may yet be speculative according to explanation 2 if there is no actual delivery of the commodity or the scrips
The explanation does not invalidate speculative according to explanation 2 if there is no actual delivery meaning to that expressing for purposes of income tax only
In D M Wadhwana vs Commissioner of Income tax supra on which the Tribunal s decision in this case is based the Calcutta High Court observed The explanation to sec
241 however does not pre vent persons from entering into contracts in which the buyers and sellers may not actually hand over the goods physically
The explanation is only designed at segregating for 187 income tax purposes loss sustained in transactions of a certain kind
It may be that such transactions arc not speculative in the light of sec
30 of the Contract Act
In enacting the explanation 2 of sec
241 of the Income Tax Act the legislature did not intend to affect any transaction of sale wherein the goods were not physically delivered by the seller to the buyer but only laid down that if there was no actual or physical delivery the loss if any would be a loss in a speculative transaction which could be allowed to be set off only against a profit in a transaction of the same nature
The object of the explanation is not to invalidate the transaction which are not completed by actual deli very of the goods but only to brand them as speculative transactions so as to put them in a special category for income tax purposes
 In our opinion this is a correct statement of the law
This aspect o the matter was not considered in Raghunath Prasad Poddar vs Commissioner of Income tax Calcutta
supra we think the law on the point was correctly stated in D M Wadhwana vs Commissioner of income tax supra and in our opinion the question referred to the High Court in the present case has been correctly answered
The appeal is accordingly dismissed but in the circumstances of the case without any order as to costs


Summary:
The appellant company which carried on business in tea garden tools and requisites and also acted as agents for selling tea derived the bulk of its income from selling commission on tea
The assessment year in question is 1950 60
In the relevant previous year which ended on June 30 1958 the assessee for the first time in its history entered into certain transactions in jute
On April 17 1958 the assessee had contracted to purchase 1100 bales of B Twill and 2500 bales of corn sacks
the contract for B Twill was with two parties Ms Raghunath Sons P Ltd for 500 bales and Ms Mahadeo Ramkumar for 600 bales
The corn sacks were all purchased from Tulsider Jewaraj under three contracts for 800 bales 1000 bales and 700 bales respectively
On June 18 1958 the assessee entered into a contract with Ms Lachhminarain Kanoria  Co to sell the aforesaid quantities of B Twill and corn sacks
The assessee had no godown for keeping the goods and had not handled them
The goods were in the godown of the mills and only the delivery orders addressed to the mills changed hands
The amount realised on sale to Ms Lachhminarain Kanoria  Co came to Rs 1049865
The assessee had however purchased the corn sacks and D Twill for Rs 1148399 
The transactions thus resulted in a loss of Rs 98534 to the assessee and the assessee claimed adjustment of this loss in the computation of its income for the assessment year 1959 60
The Income tax officer held that the transactions involving mere transfer of delivery notes and not actual delivery of the goods were of a speculative character as contemplated in explanation 2 to sec
241 and the loss could be set off only against speculation profits and as there were no speculation profits is that year he held that the loss would be carried forward and set off against speculation profits in the future
The appellate Commissioner on appeal by the assessee held that the transaction were not speculative and the loss should be treated as business loss
In appeal by the Department the Tribunal held that this case came within the scope of Sec
241  read with explanation 2 and restored the order of the Income tax officer
In reference the High Court answered the question formulated by the Tribunal in the affirmative and against the assessee
Section 241 of the Indian Income tax Act 1922 provides that where an assessee sustains a loss under any of the heads of income chargeable to income tax as enumerated in 9 6 of the Act in any year he shall be entitled to have the loss set off against his income profits or gains under any other head in that year
This general provision is qualified by the first proviso which permits the set off of a loss in speculative business against the assessee s profit and gains if any in a similar business only
Explanation 1 says that where the speculative transactions are of such a nature as to constitute a business the business shall be deemed to be distinct and separate from any other business
Explanation 2 defines a speculative transaction as a transaction in which a contract for purchase and sale of any commodity is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity
This appeal has been preferred by the assessee company after obtaining special leave from this Court Dismissing the appeal 181  HELD The words actual delivery in explanation 2 means real as opposed to notional delivery
For the income tax purposes speculative transaction means what the definition of that expression in explanation 2 says
Whether a transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this explanation
The definition of delivery in section 22 of the which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the explanation
A transaction which is otherwise speculative would not be a speculative transaction within the meaning of explanation 2 if actual delivery of the commodity or the scrips has taken place on the other hand a transaction which is not otherwise speculative in nature may yet be speculative according to explanation 2 if there is no actual delivery of the commodity or the scrips
The explanation does not invalidate speculative transactions which are otherwise legal but gives a special meaning to that expression for purpose of income tax only
The question referred to the High Court in the present case has been correctly answered
186E G 187D D M Wadhwana vs Commissioner of Income tax West Bengal  approved
Raghunath Prasad Poddar vs Commissioner of Income fax Calcutta  over ruled
Duni Chand Rataria vs Bhuwalka Brothers Ltd  Bayana Bhimayya and Sukhdevi Rathi vs The Government of Andhra Pradesh  and The State of Andhra Pradesh vs Kolla Sreeramamurthy   held inapplicable
Manalal M Varma  Co P Ltd vs Commissioner of Income tax and Butterworty vs Kingsway  referred