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TMI Blog1965 (2) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case, the loss of ₹ 21,881 in Tata deferred shares is an admissible deduction in the determination of the net income, profits and gains from 'business' under section 10 of the Income-tax Act? 2. Whether, on the facts and in the circumstances of the case, dealings in shares, cotton waste and money-lending constitute the 'same business' within the meaning of section 24(2) of the Income-tax Act? The question formulated by the Tribunal in each of the connected references is: Whether, on the facts and in the circumstances of the case, dealings in cloth, shares, brokerage and money-lending constituted the same business within the meaning of section 24(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36,385 11,385 3,226 721 1,670 25 Interest on money- lending 35,405 --6,725 16,923 8,774 7,014 12,789 Dividend (net) 4,099 (net) 1,017 -- (net) 1,845 (net) 680 1,204 Cloth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Profit Profit It will be noticed that in the assessment years 1948-49, 1951-52 and sub- sequently the assessee did not do any business in cloth and any business in cotton waste in the assessment years 1948-49 up to 1951-52. In the assess- ment year 1948-49 it suffered a loss of ₹ 96,793.00, in 1949-50 a loss of ₹ 58,069.00 and in 1951-52 a loss of ₹ 1,126.00; it made a profit in the other assessment years. In the assessment year 1953-54 it also carried on a business in speculation by purchasing and selling deferred shares of a certain company; it did not take and did not give delivery of the shares. It suffered a loss of ₹ 21,881,00 in the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs can be set off against the profits from other business for the purpose of computing the profits and gains under section 10(1) of the Act and that, for the purpose of computing the profits and gains from business under section 10, the proviso to section 24(1) has no application. In this view of the matter, question No. 1 is answered in the affirmative and in favour of the assessee. The answer to the second question will depend solely on whether the finding of the Tribunal that the dealing in shares and the dealing in cotton waste and money-lending do not constitute the same business is supported by material on the record and the legal inference drawn could have been drawn. The case before the Tribunal proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ste not to be the same business as share dealing and jobbering. Mr. Brij Lal Gupta, the learned counsel for the assessee, has contended that the legal inference drawn by the Tribunal from the facts found that the two businesses did not constitute the same business was unjustified. This cannot be acceded to. There was undoubtedly material before the Tribunal for the facts found by it. As set out hereinabove, various factors and circumstances were taken into consideration and the legal inference drawn therefrom that the two businesses were not the same business cannot be said to be erroneous or one which the Tribunal could not possibly have drawn. What Mr. Brij Lal Gupta wants this court to do, in a matter arising up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law because the two tests which were considered to be important were not necessarily so in view of the decision of the Supreme Court in Setabganj Sugar Mills Ltd. v. Commissioner of Income-tax [1961] 41 I.T.R. 272. The contention is without force. The learned judges of the Bombay High Court have nowhere said that they were laying down an infallible test for determining whether the two businesses are the same business or not. All that was said was that certain tests may be more important than others. It is, therefore, not correct to say that the force of the Bombay decision has in any way been watered down by the decision of the Supreme Court. As already observed, it is the cumulative effect of all the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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