K.B. Asthana, C.J.
1. We have heard learned counsel for the assessee and learned counsel for the revenue. We think on the facts and circumstances of the case the Income-tax Appellate Tribunal was in error in disallowing the assessee to argue that the transactions in question were in reality hedging contracts and not speculative transactions by assuming that the assessee had admitted before the Appellate Assistant Commissioner of Income-tax that the transactions in question were speculative transactions and thereby had in fact withdrawn his objection taken in the ground of appeal challenging the finding of the Income-tax Officer that the transactions in question were speculative in nature and not hedging contracts. What happened was, as appears from the record, that the assessee before the Income-tax Officer pleaded that a loss to the extent of Rs. 30,922 was a loss incurred on account of failure on the part of the assessee to fulfil the contract for supply of oil to his customers and being a business loss he set off against the income of the oil business for the year. The Income-tax Officer held that the said sum represented loss incurred in speculative transactions and as such the loss could not be set off from the income of the oil business. The assessee being aggrieved filed an appeal. The learned Appellate Assistant Commissioner, it appears from his judgment, in the course of the argument made an observation that in his opinion the losses were incurred on account of speculative transactions. Being faced with that observation the representative of the assessee after taking legal advice did not seem to have seriously contended before the Appellate Assistant Commissioner to the contrary inasmuch as on the law as declared by the High Court even the speculative losses could be set off against income from other business done in the year. The learned Appellate Assistant Commissioner granted the set-off against the income of the assessee from business other than oil business. The Commissioner of Income-tax went up in appeal before the Income-tax Appellate Tribunal. Before the Tribunal a decision of the Supreme Court was relied upon by the revenue which had overruled the view of the Allahabad High Court and had declared the law to the effect that losses incurred in speculative transactions could not be set off in the same year even against any other business. The assessees then raised the question of the correctness of the decision or the finding recorded by the Appellate Assistant Commissioner as to the nature of the losses in question. The Appellate Tribunal did not allow such an argument to be raised by the assessee as it took the view that the assessee had admitted before the Appellate Assistant Commissioner that the losses in question were incurred in speculative transactions. It is obvious from the above narration that the circumstance in which the assessee did not press the ground that the losses in question were speculative in nature was on account of the fact that he was advised by his legal adviser that it was no use pursuing the point, as the benefit the assessee wanted he would get, in view of the law laid down by the High Court of Allahabad by which the income-tax authorities were bound. Since the assessee acted on legal advice which ultimately was found to be wrong and acting on the wrong advice it did not press the appeal on the main question on which the parties were at controversy it could not amount, in our opinion, to any admission of fact or unqualified withdrawal of the ground taken before the Appellate Assistant Commissioner. We are not aware of any principle of law which would justify in the eye of law such conduct on the part of the assessee as coming within the mischief of the doctrine of estoppel.
2. For the reasons given above we answer the question in the negative, in favour of the assessee and against the revenue. We assess the costs at Rs. 200, payable by the revenue to the assessee.