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TMI Blog2003 (2) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,39,012. To support the claim of loss, the assessee filed copy of bill raised by M/s. Bharat Vyapar Sadan; evidence of transportation i.e. photo copies of bills of clearance forwarding and transportation carrying the above goods from Bombay Port to Carnee Bridge Railway Station and also copies of railway receipts. The Assessing Officer noted from the railway receipts that goods were booked at the railway station in the name of Bharat Vyapar Sadan and not in the name of the assessee. He called upon the assessee to explain and assessee clarified that though goods had been booked in the name of M/s. Bharat Vyapar Sadan but their contract was to take delivery from Bombay Carnee Port, that is why goods had been carried, loaded and unloaded from Bombay Port to Railway Station on their behalf by the clearing, forwarding and transporting agent. The Assessing Officer was of the view that assessee could not explain the reason for not booking the goods at the railway station in its own name when the delivery was taken at the Bombay Port. The goods were loaded on 17th, 19th and 20th of March 1990 by M/s. Bharat Vyapar Sadan and till then it is M/s. Bharat Vyapar Sadan who was owner of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the assessee had really taken delivery of goods at Bombay Port as was the case set up, there was no reason why goods should have been booked at the railway station by M/s.Bharat Vyapar Sadan as consigner in favour of self. It was also clear that M/s. Bharat Vyapar Sadan endorsed the railway receipt in favour of the assessee on arrival of the goods at Delhi under its ownership and then assessee endorsed the railway receipts in favour of the four parties. The conclusion was that evidence on record did not establish that the assessee had taken delivery of the goods and even ownership of the moong remained with M/s. Bharat Vyapar Sadan. Reliance was also placed on the decision of Hon'ble Madras High Court in the case of R. Chinnaswami Chettiar v. CIT [1974] 96 ITR 353 in which Their Lordships have concluded that delivery contemplated under section 43(5) of the Act was real delivery and not notional delivery and hence mere making of entry as if there was purchase and resale without effecting actually delivery of the commodity would not satisfy the test of actual delivery under section 43(5) of the Act. With these findings, the CIT(A) confirmed the action of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative transaction and for that the learned Counsel placed reliance on the decision of Hon'ble Rajasthan High Court in the case of CIT v. Aditya Mills Ltd. [1994] 209 ITR 9331. 7. It was also the case of the assessee that mere mention of the name of seller in G.R. was not going to prove the ownership of seller of the goods and endorsement made by seller in favour of the assessee on the back of G.R. was sufficient for transfer of the goods and that would also not be sufficient for concluding that delivery was actually taken. The goods were given to carrier and that fact also proves that actual delivery was taken as laid down in the case of CIT v. Lakshminarayana Trading Co. [1996] 219 ITR 90 (AP). The contention is that assessee had proved that it had taken the actual delivery and ownership was also with the assessee. 8. It was also the contention of the learned Counsel that once assessee proved taking of actual delivery, provisions of section 43(5) would not come into play. In alternative, the learned Counsel submitted that even if it is taken that it was a speculative transaction, still the claim of the assessee for claiming the loss out of any speculative business, profit could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 of the paper book. The assessee had paid this amount through cheque and that has also not been disputed and copy of account of this clearing agent is appearing at page 9 of the paper book. The clearing agent was representative of the assessee for taking delivery and once he had incurred the expenses of loading and unloading at port and railway station, and other expenses as well as lorry etc. then the factum of taking actual delivery stands proved. It is more than sufficient compliance of taking actual delivery if assessee had deputed his representative to take possession over the goods. It is not a case of constructive delivery but assessee's representative had actually taken the actual delivery of moong. The Assessing Officer as well as CIT(A) were swayed by this fact that assessee had filed railway receipt on record which revealed that consignee and consignor of the goods was Bharat Vyapar Sadan, Bombay and from that it was inferred that M/s. Bharat Vyapar Sadan alone remained owner of the same till the goods were loaded at railway station and later on that concern endorsed the railway receipt in the name of assessee who ultimately endorsed the same to four purchasers. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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