Case: Commissioner Of Income-Tax, U.P Vs. Jagannath Mahadeo Prasad, Etc

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 v. Ram Gopal Kanhaiya Lal, 1960-38 ITR 193 = (AIR 1960 Madh Pra 106) as also by the Division Bench of the Punjab High Court in Manohar Lal Munshi Lal v. Commissioner of Income-tax, New Delhi, 1962-44 ITR 618 = (AIR 1960 Punj 520). The matter ultimately went to a Full Bench of the Punjab High Court in Commissioner of Income-tax v. Ram Swarup, 1962-45 ITR 248 = (AIR 1962 Punj 318) (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 v. Commissioner of Income-tax, Andhra Pradesh, 1963-47 ITR 809 (A. P.); Hanuman Investment Co. v. Commissioner of Income-tax, West Bengal, Calcutta, 1968-48 ITR 915 (Cal) and Joseph John v. Commissioner of Income-tax, Kerala, (1964) 51 ITR 322 (Ker) the considerations which prevailed in Keshavlal Premchands case were accepted as correct.4. It would appear that so far as this court is concerned the matter now stands concluded by the following observations in Commissioner of Income-tax, Gujarat v. Kantilal Nathu Chand, 1967-63 ITR 318 at p. 321 = (AIR 1967 SC 632 at pp. 634-635)."Section 24 is, thus, a provision laying down the manner of computation of total income. The principal clause of section 24 (1) lays down that, if there be a loss of profits or gains in any year under any of the heads mentioned in Section 6, that loss has to be set off against the income, profits or gains of the assessee under any other head in that year. If this provision had stood by itself without any provisos, the result would have been that all losses incurred by, an assessee under any of the heads mentioned in Section 6 would be adjusted against profits under all other heads, and then the total income of the assessee would be worked out on that basis. The first proviso to this sub-section, however, lays down an exception to this general rule contained in the principal clause. The exception relates to income from business sustained in speculative transactions and places, the limitation that losses sustained in speculative transactions are not to be taken into account in computing the profits and gains chargeable under the head "Profits and gains of business, profession or vocation, except to the extent that they will be set off against profits and gains in any other business which itself consists of speculative transactions. The effect of the proviso is that if there are profits in speculative business, those profits are added to income under the other heads mentioned in Section 6 for purposes of computing the total income of the assessee in order to determine the tax under Section 23 of the Act. On the other hand, losses in speculative business are not to be taken into account when computing the total income, except to the extent to which they can be set off against profits from other speculative business. The first proviso, thus, clearly limits the applicability of the principal clause of Section 24 (1); and, when applied, it governs the manner in which the total income of the assessee is to be computed. In the case before us, the Income-tax Officer was clearly right in the assessment years 1958-59 and 1959-60 in not setting off the losses in the speculative business against the income earned in those years either from property or from ready business in kappas".The learned counsel for the assessee sought to press the reasons which prevailed with the learned Judges of the High Court and has sought to characterise the above observation as obiter. It is neither necessary to deal with the reasoning of the High Court nor can that reasoning stand in view of what has been laid down in Kantilal Nathu Chands case, 1967-63 ITR 318 = (AIR 1967 SC 632 ) by this court which cannot be regarded as obiter because it has been clearly stated that the question of the applicability of the proviso with which we are concerned arise directly in that case in respect of the assessment years 1958-59 and 1959-60. The concluding portion of the passage extracted leaves no room for doubt in this matter.5. Moreover we are of the opinion that where the language is quite clear and no other view is possible it is futile to go into the question whether the proviso to S. 24 (1) operates as substantive provision or only by way of an exception to S. 24 (1). The proviso says in unmistakable and unequivocal terms that any losses 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 or gains in any other business consisting of speculative transactions. This has to be read with Explanation (1) according to which 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. Moreover we are of the opinion that where the language is quite clear and no other view is possible it is futile to go into the question whether the proviso to S. 24 (1) operates as substantive provision or only by way of an exception to S. 24 (1). The proviso says in unmistakable and unequivocal terms that any losses 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 or gains in any other business consisting of speculative transactions. This has to be read with Explanation (1) according to which 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.