TMI Blog1967 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1089-1090 of 1958-59. The respondent (hereinafter called the "assessee") is an oil miller who purchases cocoanuts and copra for extraction of oil in his own expellers or chekkus for the market. The purchases of the raw materials, cocoanuts and copra, are made ready for spot delivery as also for delivery in Vaida dates. The sales of oils were also made on the same basis by the assessee. All these contracts, ready and forward, are on a large scale and are put through either the Alleppey Oil Millers' Association, commission agents or other merchants. The aforesaid contracts are of two varieties ; those on which delivery was intended and those intended to be settled on the Vaida dates, only for price differences. The latter type, forward c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which the transactions would come within the meaning of proviso (a) to Explanation 2 of section 24(1) of the Act. On further hearing of the appeal after remand, there was a difference of opinion between the two Members of the Tribunal on the following point : "Whether the losses of Rs. 26,248 and Rs. 14,043 incurred by the assessee in the settlement of forward contracts in cocoanut oil in which also he traded during the calendar years ended 1952 and 1953, the previous years for the respective assessment years 1953-54 and 1954-55, are deductible as business losses under section 10 in the respective assessments ?" Thereupon the President made a reference under section 5A(7) of the Act to three other Members of the Tribunal including h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a registered firm which has been assessed under sub-section (1), (3) or (4) of section 23, and does not apply to any other income or loss. The first proviso to section 23(5)(a) does not apply to loss incurred by a registered firm in speculative business which is to be kept apart under the first proviso to section 24(1), and is not to be taken into account when computing the total income of the firm under section 23(1), (3) or (4). It was further held in that case that speculation loss of a registered firm kept apart under the first proviso to section 24(1) in computing its total income for one year could not be apportioned between the partners and the registered firm could claim to carry forward such loss and have it set off against sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was based upon any such misapprehension. It is manifest that the finding of the Appellate Tribunal that the transactions were speculative transactions and not hedging transactions is essentially a finding on a question of fact and it is not open to the High Court to interfere with that finding unless there is no evidence to support that finding or it is perverse. In the present case, there is the admission of the assessee before the Appellate Assistant Commissioner that he was carrying on two different businesses--one of cocoanut oil and the other of speculation in cocoanut oil. By its remand order dated November 29, 1956, the Appellate Tribunal directed the Appellate Assistant Commissioner to ascertain whether the speculative transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the actual delivery or transfer of the commodity or scrips : Provided that for the purposes of this section,-- (a) a contract in respect of raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him ; or (b) a contract in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations ; or (c) a contract entered into by a member of a forward market or a stock exchange in the course of any transaction in the nature of jobbin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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