Per V.K. Gupta, Accountant Member: This appeal filed by assessee is directed against order of CIT(A), VII, Mumbai, dated 30-11-2000 for assessment year 1996-97. 2. We have heard both parties and have also perused records and other applicable legal position. 3. Ground No. 3 was not pressed, hence, same is dismissed as not pressed. 4. In Ground Nos. 1 and 2, assessee is aggrieved by decision of learned CIT(A) in confirming action of Assessing Officer in invoking provisions of section 73 and holding that loss in trading of shares was speculation loss. 5. facts, in brief, are that assessee-company filed its return of income showing loss at Rs. 43,26,691. composition of income comprises of following:- (i) Business loss (-) Rs.45,91,536 (ii)Dividend Income Rs. 3,83,247 (iii)Capital Gains Rs. 6,48,092 Assessing Officer noted that assessee was engaged in business of investment and trading in shares and securities, hence, asked assessee to explain why Explanation to section 73 of Act was not applicable. Assessing Officer also required assessee to work out net loss after taking into account expenses. assessee submitted that loss had arisen during year in regular course of business. Assessing Officer held that assessee's case was not covered under exception provided in Explanation to section 73. Assessing Officer relying on decision in case of CIT v. Sun Distributors & Mining Co. Ltd. [1993] 68 TAXMAN 223 (Cal.), CIT v. Arvind Investments Ltd. [1991] 192 ITR 365 (Cal.) and Eastern Aviation & Industries Ltd. v. CIT [1994] 208 ITR 1023 (Cal.) held that share trading loss was to be treated as speculation loss. Assessing Officer also attributed expenses in ratio of sales to total turnover to arrive at net loss and completed assessment proceedings. Aggrieved by this, assessee carried matter into appeal before learned CIT(A). learned CIT(A) also confirmed action of Assessing Officer in regard to applicability of Explanation to section 73 of Act. As regards yardstick of allocation of expenses to be adopted towards proprietary share activity, learned CIT(A) restored matter to file of Assessing Officer to be decided after taking into consideration submissions made by assessee-company and as per provisions of law. Still aggrieved, assessee is in appeal before us. 6. case was originally fixed for hearing on 7-8-2006 wherein learned counsel for assessee had placed reliance on decision of Tribunal in case of Associated Capital Market Management (P.) Ltd. v. Jt. CIT [Order dated 31-3-2003 in IT Appeal No. 1103 (Mum.) of 2001] for assessment year 1996-97, wherein Tribunal had decided in favour of assessee. learned counsel for assessee had stated that facts of case under consideration were stated to be identical to facts of that case, hence, case was heard mainly as covered case and result was pronounced during course of hearing itself. learned counsel for assessee had also contended that decision of Hon'ble Calcutta High Court in case of Eastern Aviation & Industries (P.) Ltd. (supra) was not binding and for this proposition, he placed reliance on decision of Hon'ble jurisdictional High Court in case of CIT v. Thane Electricity Supply Co. [1994] 206 ITR 727 (Bom.). 7. learned DR placed reliance on order of learned CIT(A) who had followed decision of Hon'ble Calcutta High Court. 8. Thereafter, during course of further study of files, Bench thought that certain observations in order of Special Bench in case of Asstt. CIT v. Concord Commercial (P.) Ltd. [2005] 95 ITD 117 (Mum.) were relevant and also decision of Tribunal in case of Yucca Finvest (P.) Ltd. v. Dy. CIT [2006] 101 ITD 403 (Mum.) were also relevant, hence, case was released for fresh hearing as part heard case so as to confront these two decisions to assessee. Accordingly, this case was finally heard on 11-6- 2007. In course of hearing on that date, learned counsel for assessee first stated that only Ground Nos. 1 and 2 were pressed as was case during course of hearing on 7-8-2006. learned counsel also narrated factual background and pointed out that during course of original hearing, revenue had not cited any decision. In this background, learned counsel took preliminary objection that Tribunal had pronounced order, hence, if any decisions was taken contrary to decision pronounced, it would amount to review of order and which was beyond its powers. ld. counsel for assessee, in this regard, placed reliance on decisions of Hon'ble Delhi High Court in case of CIT v. Sudhir Choudhrie [2005] 278 ITR 490 and in case of CIT v. G. Sagar Suri & Sons [1990] 185 ITR 484. 9. ld. DR, at this stage, pointed out that decision of Hon'ble Delhi High Court in case of G. Sagar Suri & Sons (supra) was altogether in different context wherein written order was at variance with pronouncement made during course of hearing and in that situation, it was held that there was mistake in written order which could be rectified. learned DR also contended that this proposition rather supported approach o f Tribunal in present case where adequate opportunity of hearing was given to assessee before taking any other view in matter. ld. DR also contended that decision of Hon'ble Delhi High Court in case of Sudhir Choudhrie (supra) was again in different context, hence, it did not support contention of assessee in substantial manner. 10. Without moving forward to decide matter on merits, we consider it pertinent to deal with this aspect first. In this context, we would like to refer to decision of Hon'ble Supreme Court in case of ITAT v. V.K. Agarwal [1998] 101 TAXMAN 382 and another wherein Hon'ble Supreme Court on basis of rules 34 and 35 of IT (Appellate Tribunal) Rules, 1963 held that basis of rules 34 and 35 of IT (Appellate Tribunal) Rules, 1963 held that unless order of Bench was signed by all members constituting it and was dated, it was not order of Tribunal. It was also observed that signed and dated order had to be communicated both to assessee and to Commissioner. Thus, for ready reference, we consider it pertinent to reproduce said rules 34 and 35: ' 34. (1) order of Bench shall be in writing and shall be signed and dated by members constituting it. [The members constituting Bench or in event of their absence by retirement or otherwise, Vice President (Senior Vice President) or President may mark order as fit for publication]. (2) Where case is referred under sub-section (4) of section 255, order of member or members to whom it is referred shall be signed and dated by him or them, as case may be. 35. Tribunal shall, after order is signed, cause it to be communicated to assessee and to Commissioner.' plain look at rule 34 makes it clear that order of Tribunal can be only in writing as duly signed and dated by members constituted it, hence, legally speaking oral pronouncement during course of hearing is not order at all. It is only intimation of likely result or prima facie conclusion expressed on basis of contentions made by parties. It is only procedural aspect and it does not create any statutory embargo or limitation. If looked upon in other way, any party cannot proceed further unless it receives order in writing and in case of orders passed by Tribunal, limitation also starts from date when order is served, hence, oral pronouncement does not give any inherent right or creates any limitation with regard to statutory rights of parties to disputes. Even entry to this effect, in Order Sheet signed by Members of Bench would not constitute order within meaning of rule 34 of ITAT Rules because as judicially settled that order is mandate precept or command but reasoning is its soul, hence, without any reasoning or conclusion based upon considered or authoritative opinion on matter or context, oral pronouncement cannot be order in strict sense. Thus, in our considered opinion, there is no merit in contentions raised by ld. counsel in this regard. 11. To sort out this controversy, we would further like to deal with matter even if it is presumed that oral pronouncement during course of hearing is order, then Tribunal being Court of plenary jurisdiction is well within its powers within meaning of section 254(1) of Act to re-fix it for clarifications before passing order in writing. Hon'ble Punjab High Court, in case of Oriental Building & Furnishing Co. v. CIT [1952] 21 ITR 105, held as under:- ' Tribunal's power of dealing with order passed by Appellate Assistant Commissioner is plenary and has been expressed in section 33(4) of Indian Income-tax Act, 1922, as widely as can be conceived. In appeal under section 33 Tribunal is competent to decide facts as well as law and possess authority to substitute its own order of assessment for order under appeal. It is also competent for Tribunal to base its decisions on ground not s e t forth in memorandum of appeal provided party who is affected thereby is afforded sufficient opportunity of being heard on that ground.' Thus, above observations make it amply clear that, in such situations, what is required is grant of opportunity of hearing being given to parties who are likely to be affected. following observations of Hon'ble Allahabad High Court in case of S.B. Singar Singh & Sons v. ITAT [1965] 58 ITR 626, Allahabad Bench and another are also relevant: ' Supreme Court in Shivdeo Singh v. State of Punjab has held that 'the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it'. power of Tribunal in dealing with orders of Appellate Assistant Commissioner is sufficiently wide and has been so expressed under section 33(4) of Indian Income-tax Act, 1922. It has been held by this Court in Sri Bhagwan Radha Kishen v. CIT that Tribunal has inherent powers to set aside order deciding appeal on wrong grounds; even if rule 24 may not give that power, inherent jurisdiction for setting right injustice is there. In Oriental Building & Furnishing Co. v. CIT it has been held that Tribunal has plenary jurisdiction. Thus, according to decision of Supreme Court, all courts of plenary jurisdiction have inherent jurisdiction to rectify manifest and palpable mistakes. fortiori Tribunal has inherent jurisdiction to rectify its mistakes. Therefore, Tribunal's order rejecting application of petitioner on ground that it was barred by limitation is manifestly unsustainable in law.' [Emphasis supplied] interesting question arose before Hon'ble Kerala High Court in case of CIT v. T.K. Jayaraj [2002] 256 ITR 252, wherein reference application was dismissed by Tribunal as one filed beyond time which was subsequently restored by rectification of dismissal order. Hon'ble Kerala High Court held that Tribunal had jurisdiction to restore reference application once dismissed by it as time-barred by mistake. relevant observations of Court are as under:- ' In any case in view of developments in this case, we proceed to consider whether Tribunal has jurisdiction to restore reference application once dismissed by it as time-barred by mistake. We are inclined to agree with position canvassed by counsel for Department that Tribunal has inherent power to correct its own mistakes, because party cannot be made to suffer on account of mistake committed by Court or Tribunal. Our attention was invited to decision of Allahabad High Court in Srimathi Lachmana alias Mulraia v. Deputy Director of Consolidation [1966] RD 419, wherein Allahabad High Court held that Tribunal has inherent jurisdiction apart from statutory jurisdiction to correct error committed by it. Similarly, Punjab High Court in Mangat Ram Kuthiala v. CIT [I960] 38 ITR 1, held as follows: 'that it was settled rule that judicial Tribunal could recall and quash its own order in exceptional cases when it was shown that it was obtained by fraud or by palpable mistake or was made in utter ignorance of statutory provision and like, and for application of that rule class of Tribunal was not material matter but what was of substance and material was nature of proceedings before it: if proceedings were in nature of judicial proceedings, then irrespective of class of Tribunal rule applied.' Similar is view of Bombay High Court in case decided in Khushalchand B. Daga v. T.K. Surendran, Fourth ITO [1972] 85 ITR 48, wherein Bombay High Court held as follows: 'The Tribunal, in my view, ought to have set aside said impugned order in exercise of its inherent powers and should have reheard appeal on merits, without going into question as to whether application for rectification of mistake was within time or not, for, after all, no Court or Tribunal can allow party to suffer for its own mistake. That Court or Tribunal has such inherent power to correct its own mistake is well-settled.' Therefore, we are of view that Tribunal has inherent power to correct its mistake and having dismissed reference application by mistake as one filed beyond time, it has power to restore same on application by t h e aggrieved party. We hold that Tribunal rightly restored reference application vide its order dated 28-6-1996, and decided same on merits. Therefore, we dismiss original petition filed by assessee challenging order of Tribunal restoring reference application. In view of our decision in original petition, we answer questions on same issue referred in ITR No. 275 of 1999 at instance of assessee, in favour of Department and against assessee.' Thus, on basis of aforesaid decisions, it can be said that Tribunal has inherent power to re-fix cases in such type of situations to prevent miscarriage of justice or to grant substantial justice. only condition which is required to be satisfied is that aggrieved party must be given opportunity of hearing which has been done in this case, hence, there is nothing wrong in procedure adopted by Tribunal. 12. We would further add that many times ex parte orders are passed on merits. However, when application is being made by aggrieved party for re-hearing appeal after giving opportunity to assessee, such ex parte order is re-called though there is no express provision exist in this regard because source of such power exist under section 254(1) of Act itself. In situation, when Tribunal is clear in its mind that provisions of section 254(1) were not complied in true spirit in passing ex parte order it can recall such order for disposal afresh after giving opportunity of hearing to both parties and in such cases it does not amount to review of its earlier order because purpose of setting aside ex parte order is to consider whole matter afresh by affording opportunity of being heard. Similarly, Tribunal before passing written order can re-fix case suo motu for clarifications so as to apprise issue afresh in light of other facts or material. There is nothing wrong in it because principles of natural justice are equally applicable to judicial authorities as these are applicable to parties to disputes. 13. We would further like to refer to section 151 of Code of Civil Procedure which reads as under: ' 151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect inherent power of Court to make such orders as may be necessary for ends of justice, or to prevent abuse of process of Court.' Though Tribunal is not akin to Court but functions discharged by i t are similar to Court, hence, in addition to its expressed statutory powers it has got inherent power to pass such orders as may be necessary for ends of justice, hence, by re-fixing case, Tribunal has exercised itself inherent powers and by giving opportunity to assessee it has also complied that principles of natural justice, hence, action of Tribunal is in accordance with law. Accordingly, all contentions raised by assessee in this regard are rejected. 14. Now, coming to merits of case, assessee has mainly contended that income chargeable to tax would not include negative income and, hence, business loss under head 'Income from business or profession' had to be ignored for purpose of determining gross total income as provided in first exception of Explanation to section 73 of Act. It was also contended that positive income, howsoever, small would always be more than negative income howsoever large, hence, income in other heads was to be taken as more than business loss. ld. counsel also contended that facts of case before Special Bench of Tribunal in case of Concord Commercials (P.) Ltd. (supra) were different, hence, same was not applicable. learned counsel, however, fairly conceded that decision of Tribunal in case of Yucca Finvest (P.) Ltd.'s case (supra) was against assessee. 15. ld. DR mainly relied on orders of revenue authorities. 16. We have considered submissions made by both sides, material on record and orders of authorities below. It is settled judicial principle that ratio of decision of higher judicial forum is binding on subordinate forum. In this background, we find that facts of case before Special Bench of Tribunal in case of Concord Commercials (P.) Ltd. (supra) is different only to extent that business loss was less than income from dividend as against it being more from income from different heads in present, however, ratio of that Special Bench decision regarding whether loss is to be considered for deciding applicability of exception is concerned, same has to be taken into consideration. relevant observations of Special Bench of Tribunal are reproduced as below:- ' Para 31: Once we have held that rule to be followed in present case is test of 'gross total income', we have to examine how gross total income of assessee in this case, is made up of. assessee-company has earned profit of Rs. 2,83,29,053 from its business of trading in steel, yarn and fabrics and from service charges. assessee-company has also incurred loss of Rs. 2,84,26,411 in purchase and sale of shares. Altogether, income from business is loss of Rs. 97,358. assessee-company has further earned dividend income of Rs. 10,18,914 from shares held as its stock-in- trade. loss of Rs. 97,358 has been computed under head 'Profits and gains of business or profession'. dividend income of Rs. 10,18,914 has been computed under head 'Income from other sources'. After set off of dividend income and business loss, gross total income has been worked out to Rs. 9,21,556 which is entirely made up of dividend income computed under head 'Income from other sources'. Para 32: In present case, gross total income is made up of dividend income chargeable to tax under head 'Income from other sources'. character of gross total income for purpose of Explanation to section 73 is to be examined in light of 'chargeability' to tax of various components of gross total income under specified heads of income. 'chargeability' is to be looked into with reference to heads of income. emphasis given to 'chargeability' on basis of heads of income is apparent from relevant text of law given in Explanation to section 73, which is extracted below: 'Where any part of business of company other than company whose gross total income consists mainly of income which is chargeable under heads 'Interest on securities', 'Income from house property', 'Capital gains' and 'Income from other sources', or company principal business of which is business of banking or granting of loans and advances consists in purchase and sale of shares of other companies, such company shall, for purposes of this section, be deemed to be carrying on speculation business to extent to which business consists of purchase and sale of such shares.' Para 33: chargeability of income under specified head is prime consideration in verifying composition of gross total income for purpose of Explanation to section 73. As question whether income is chargeable under any of specified heads of income or not is to be looked into, it is equally important to follow principles governing classification of income. classification of income under different heads is important in context of 'charge' of income-tax. charge is on total income. total income is aggregate of incomes 'chargeable' under different heads specified in section 14. Income which is not chargeable under any of specified head of income cannot be brought to tax at all. Para 48: In case of Eastern Aviation & Industries Ltd. v. CIT [1994] 208 ITR 1023 (Cal.), assessee had share trading loss of Rs. 12,90,145 and speculation loss of Rs. 7,95,447. positive income from other sources was Rs. 3,87,603. In Aryasthan Corpn. Ltd. v. CIT [2002) 253 ITR 401 (Cal.) also, facts were identical where business loss was higher than positive income from other sources. But in assessee's case, dividend income is higher than business loss. Income from other sources by way of dividend was Rs. 10,18,914 whereas income from business was loss of Rs. 97,358. Even when business loss is treated as negative profit, negative profit was less than positive income from dividends. Therefore, on facts of present case, above two decisions of Calcutta High Court are not applicable to issue. Para 49: revenue has also raised certain supporting arguments that case need to be considered in light of intention of Legislature in enacting Explanation to section 73, which has been clarified in CBDT Circular No. 204, dated 24-7-1976 [110 ITR (St.) 21, 32] and that meaning of expression 'gross total income' defined in section 80B(5) cannot be imported into context of section 73 of Act. Para 50: There are no materials on record to show that assessee- company did make loss in share trading activities in order to reduce tax incidence. In respect of contention regarding 'gross total income' section 73 does not provide for any special treatment. Supreme Court has held in CIT v. Venkateswara Hatcheries (P.) Ltd. [1999] 237 ITR 174 that same word occurring more than once in Act should generally be given same meaning, but context may indicate contrary legislative intention. There is n o such indication in section 73 and Explanation thereto. Therefore, meaning of expression 'gross total income' has to be construed as given in section 80B(5)'.' In para 48, hereinbefore, Tribunal had specifically observed that even when business loss was treated as negative profit, negative profit was less than positive income from dividend, hence, decisions of Hon'ble Calcutta High Court were not applicable to issue in that case. However, these observations of Special Bench clearly indicate that Special Bench impliedly followed ratio of decisions of Hon'ble Calcutta High Court. Thus, business loss being negative profit cannot be ignored in determining applicability of exception clause of Explanation to section 73 of Act. 17. Similarly, in decision of Yucca Finvest (P.) Ltd.'s case (supra), Tribunal has also held so and that too after considering decision of Associated Capital Market Management (P.) Ltd.'s case (supra) heavily relied on by assessee. In this case, Tribunal has also taken into consideration decisions of Hon'ble Calcutta High Court in case of Eastern Aviation & Industries Ltd.'s case (supra), CIT v. Park View Properties (P.) Ltd. [2003] 261 ITR 473, Aryasthan Corpn. Ltd. v. CIT [2002] 253 ITR 401 and decision of Division Bench of Tribunal in case of Dy. CIT v. Akrosh Investment & Leasing (P.) Ltd. [2004] 90 ITD 287 (Mum.) for proposition that absolute figures had to be compared for determining as to whether assessee- company's main income was from business or under other four residuary sources. We further add that in this case, Tribunal has also taken into consideration observations of Hon'ble Bombay High Court in case of Thane Electricity Supply Co. Ltd. (supra) and has held that decision of non- jurisdictional High Court in absence of contrary decision of another non- jurisdictional High Court had great persuasive value which was required to be followed. We further find that Tribunal in case of Yucca Finvest (P.) Ltd. (supra) has rejected contention of assessee that even positive figure of Rupee one was more than loss of any extent, hence, in cases where there was loss under business head and positive income in other heads, assessee would always fall under exception. relevant findings of Tribunal are as under:- ' We have another reason to hold that it is absolute figures of loss or of income either under head 'Business' or under head 'Other sources' without 'sign' which should be taken for comparison. To consider figures along with 'sign' for comparison will yield distorted results. To consider figures with 'sign' means income of Rs. 100 will be greater than loss of Rs. 1 lakh, i.e., if income from 'other sources' is Rs. 100 whereas loss from trading in shares is Rs. one lakh, then by considering figures 'with sign' would give result that assessee's income from 'other sources' is more than its income from trading in shares as positive 100 is more than negative one lakh and, hence, case falls in one of exceptions provided in Explanation to section 73, as per arguments canvassed by learned counsel for assessee. But what will happen, if income from 'other sources' is also loss say Rs. 100 and income from trading in shares is also loss of Rs. 1 lakh, i.e., both are on same side of 'sign'. If we follow arguments of learned counsel for assessee, then negative '100' will be more than negative 1,00,000 and income of assessee from 'other sources' will be more than income from trading. In another example just opposite to this. If income from other sources is + and income from trading is + 1,00,000 then this 1,00,000 income will be more than Rs. 100 (+) and, hence, income from trading in shares will be more than income from 'other sources'. Just by reversing 'sign' of income, results become just opposite (notwithstanding position of law that when there is positive income under head 'Business', Explanation to section 73 may not be applicable). We are afraid this interpretation is giving absurd result. When 'sign' of both incomes are +ve, assessee can be said to be deriving income mainly from trading (i.e., +1,00,000 is more than + 100) when 'sign' of both incomes are '+ve', assessee will be said to be deriving income mainly from 'other sources' (as -100 is more than -1,00,000). When any interpretation gives absurd result, it has to be avoided. Thus, this interpretation of phrase 'gross total income consists mainly of income which is chargeable under head.....' in Explanation to section 73 which gives contrary results when 'sign' of two incomes are reversed i.e., with negative signs of incomes, GTI is mainly from 'other sources' and with +ve sign of two incomes, GTI is mainly from trading is unfair, irrational and unreasonable. Thus, such interpretation needed to be avoided. In our considered view if Rs. 1,00,000 is more than Rs. 100, then it is always, more irrespective of sign attached to it. Thus, it is absolute figures of two incomes divorced from 'sign', i.e., irrespective of whether it is +ve income or 'loss' has to be considered for comparison for deciding as to whether case falls in first exception of Explanation to section 73 or not. Further, we are of view that 'loss' is always chargeable to tax as it is liable to be adjusted against other income under head 'Business' in current year or if allowed to be carried forward then income of following year/s. According to us, word 'chargeable' used in Explanation to section 73 does not mean 'charged'. In other words, when we say that high negative income, i.e., higher figure of loss is less than positive income from other sources, i.e., lesser figure of income, we indirectly subscribe to view that loss is not chargeable to tax. According to us, word 'chargeable' used in Explanation to section 73 would refer to chargeability to tax under Act. This would only mean that loss may not be charged to tax directly in current year. But by adjustment against other business income in that year or in following years, it reduces other income on which tax is levied. Hence, negative income, i.e., loss is as equally chargeable to tax as positive income. Hence, we have to consider absolute figure to determine as to whether assessee-company's gross total income consists of mainly of income chargeable to tax under 'business' head or under other four heads described in Explanation to section 73.' 18. Thus, taking consideration of all relevant facts of case and decision in case of Yucca Finvest (P.) Ltd. (supra) duly supported by observations of Special Bench of Tribunal in case of Concord Commercials (P.) Ltd. (supra), we reject ground Nos. 1 and 2 of assessee. 19. In result, appeal filed by assessee stands dismissed. *** MAFATLAL SECURITIES LTD. v. JOINT COMMISSIONER OF INCOME TAX