1985 (12) TMI 35

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..... o be set off as hedging loss against other income of the assessee ? " The Tribunal upheld the contention of the assessee that the losses which it claimed to set off arose from sales in the nature of forward contracts. The losses arose, the Tribunal found, on account of holding stock, the value of which went down. The Tribunal accepted the assessee's contention that the circular issued by the Central Board of Revenue under the repealed Indian Income-tax Act, 1922, governed the transactions in question and enabled the assessee to claim the set-off in terms of sections 71 and 72 read with proviso (a) to section 43(5). It is contended on behalf of the Revenue that the Tribunal went wrong in accepting the claim of the assessee without comi .....

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..... ereinafter referred to as the repealed Act),-... (k) any agreement entered into, appointment made, approval given, recognition granted, direction, instruction, notification, order or rule issued under any provision of the repealed Act shall, so far as it is not inconsistent with the corresponding provision of this Act, be deemed to have been entered into, made, granted, given or issued under the corresponding provision aforesaid and shall continue in force accordingly." This means that a circular issued under the repealed enactment will be binding on the Department only to the extent that it is consistent with the provisions of the new enactment. Whether or not the circular in question is in fact capable of being read in a wider se .....

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..... r actual delivery of goods within the meaning of proviso (a) to section 43(5). There is some reference in the Tribunal's order to a pre-existing contract. The Tribunal says : " ... We are told that the contracts for actual delivery of goods sold by the assessee is always oral since it is ready delivery..." From the vague reference to what the Tribunal says, " we are told that contracts are always oral ", we are not in a position to proceed on the basis that there is determination of the crucial fact, namely, the pre-existing contract for actual delivery, with reference to which the assessee's claim for set off can be considered. We are accordingly of the view that this fact has to be found. If this fact were to be found in favour of th .....

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