Omkarmal Agarwal vs Commissioner Of Income-Tax, A. P. on 4 March, 1966
In the first place, we are of view that this question is not one which has been referred to us under section 66 of the Act and we find it difficult to agree with the learned advocate for the assessee that this question arises out of the order of the Tribunal. Before all the authorities below, the case proceeded on the footing that the section applicable to the facts of the case was section 24. There was not a whisper anywhere in the course of those proceedings that the appropriate section was section 10 and not section 24. Even assuming for the sake of argument that this point may be permitted to be raised before us, that is of little help to the assessee because it has been held by two Bench decisions of this court in Jummarlal Surajkaran v. Commissioner of Income-tax and Commissioner of Income-tax v. Ramlal & Sons, that the proviso to section 24 (1) enacts a substantive rule of law and its operation is not confined to cases falling within the main provision of section 24 (1), i.e., to cases where loss under one head of income is sought to be set off against profits under another head. It was further laid down that the effect of the proviso is that it is not open to an assessee to adjust the loss sustained in speculative business against his income derived from other business which are not of a speculative character, but he could lay claim to a set-off only against profits got from a business of a speculative nature. We are in respectful agreement with the view expressed in the above two cases.