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TMI Blog2013 (5) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... s per section 43(5) of the Income Tax Act? 2. Tribunal in the impugned judgment relied on its own decision in case of CIT v. Friends and friends Shipping Pvt. Ltd. which was carried in appeal before this Court. This Court had also by judgement 23.8.2011 in Tax Appeal No.251/2010 upheld the decision of the Tribunal. In the said judgement, this Court had made following observations : "Having thus heard the learned advocates for the parties and having perused the documents on record, we find that the issue is covered by the decisions of the Bombay High Court in the case of Badridas Gaurida (P) Ltd. and the Calcutta High Court in the case of Soorajmull Nagarmull (supra). In the decision of the Bombay High Court, the assessee was in the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto by the assessee for export of cotton in some case failed. In the circumstances, the assessee was entitled to claim deduction in respect of Rs.13.50 lakhs as a business loss. This matter is squarely covered by the judgment of the Calcutta High Court, with which we agree, in the case of CIT v. Soorajmull Nagurmull [1981] 129 ITR 169." Before the Calcutta High Court, the assessee was a firm engaged in the business of import and export of jute. In course of business, the assessee would enter into forward contract in foreign exchange in order to cover the loss which may arise due to difference in foreign exchange valuation. In one such contract, the assessee had to pay to the Bank difference of Rs. 80,491/- which was claimed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee entered into forward transactions in neem oil and cotton seed oil. In that view of the matter, the Court held that it was not a hedging transaction since there was no evidence that the assessee had adequate stock of raw materials to the extent of hedging transactions. In the case of Joseph John (supra), the Apex Court observed that the burden of proof is upon the assessee to show that the transaction is not speculative transaction but a hedging transaction and further that the finding of the Tribunal that the transaction carried out by the assessee is speculative in nature and not hedging transactions is essentially a finding on a question of fact. The above noted decisions do not directly touch the controversy arising in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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