BERI, C.J.—The Income-tax Appellate Tribunal (Delhi Bench C) has, at the instance of the Commissioner of Income-tax, Rajasthan, Jaipur, referred this case to us u/s. 66(1) of the Income-tax Act, 1922 (hereinafter called "the Act") for answering the following question: "Whether on the facts and in the circumstances of the case, the assessee was entitled to set off his share of loss from the firm M/s Gan a Theatre, Bikaner, against his other income?" 2. The Assessee is an individual. He is also a partner in the firm of Ganga Theatre, Bikaner. The assessment relates to the years 1960-61 and 1962 for which the relevant previous years ended on 31-10-1959 and 31-10-1960 respectively Messrs Ganga Theatre, Bikaner, filed its returns of loss for both the years in question, but as the returns were filed beyond the statutory period as laid down under sec.22(2A) of the Act, the Income-tax Officer did not consider them and the result was that no assessment was made on that firm. The applications made by the firm seeking registration were also shelved. The assessee in his returns for the aforesaid years claimed to set off the share of his losses in the two relevant years in the said unregistered firm. The Income-tax Officer held that the income of the firm shall be treated as "nil", subject to rectification under sec. 154 of the Act, and disallowed the assessees claim for the set off arising from the loss. The assessee appealed and the Appellate Assistant Commissioner accepted his contention in respect of both the assessment years and directed the Income tax Officer "to compute the loss of the firm of M/s. Ganga Theatre, Bikaner and set off the appellants share of loss from the said firm against the other income of the appellant." The department was dissatisfied and it preferred an appeal before the appellate Tribunal. The Tribunal upheld the directions given by the Appellate Assistant Commissioner, but at the instance of the Commissioner of Income-tax, referred the question mentioned above, for our answer. 3. Mr. S.K. Mal Lodha, learned counsel for the Revenue, has submitted before us that the assessees share of loss in an unregistered firm, which has not been assessed, cannot be set off against the assessees individual profits, even though they may be under the head of "business", although of a different texture. 3. Mr. S.K. Mal Lodha, learned counsel for the Revenue, has submitted before us that the assessees share of loss in an unregistered firm, which has not been assessed, cannot be set off against the assessees individual profits, even though they may be under the head of "business", although of a different texture. He cited in support of his contention Commissioner of Income-tax, Nagpur vs. Hirani Construction Co (1). Commissioner of Income tax, Bihar and Orissa vs Gangadhar Nathmal (2), B. Chickotappa vs. Income tax Officer Central Circle II, Bangalore(3) and Raja Sugar Co. vs. Commissioner of Income-tax (4). His further submission was that all these authorities have their foundation in the Supreme Court authority in Commissioner of Income-tax, Bombay City II vs. Jadavji Narsidas & Co (5). In all fairness, he also cited before us the authorities which have taken the view contrary to one canvassed by him. namely, Commissioner of Income tax vs. P. M. Muthuraman Chettiar (6), Commissioner of Income tax, Mysore, Travancore-Cochin and Coorg vs. Indo Mercantile Bank Ltd.,(7), Commissioner of Income tax, Bombay South vs. Jagannath Narsingdas(8) Commissioner of Income-tax, Gujarat vs. Jethalal Zaverchand Patalia(9) and Commissioner of Income-tax, Delhi vs. Ramswarup Gupta(10). 4. Mr. Lodha also submitted that the second proviso of sec.24 (1) of the Act was in fact and substance an independent provision, although it is shaped as a proviso and if read in this light it supports his contention, namely, that the loss of an unregistered firm, which has not been assessed, cannot be taken credit of by an individual partner in his own assessment and in support of his contention, he cited Keshavlal Premchand vs. Commissioner of Income-tax Ahmedabad (11). 5. Mr. J.K Singhi urged that the second proviso to sec. 24(1) of the Act cannot, having regard to its language, be treated as a substantive provision and he placed reliance on Jamnadas Daga vs. Commissioner of Income-tax Madhya Pradesh & Bhopal Nagpur(12) and Mohanlal Hiralal vs. Commissioner of Income-tax C. P. and Berar, Nagpur(13). He further submitted that in Commissioner of Income-tax, Bombay south vs. Jagannath Narsingdas (8) the Bombay High Court has not treated it as a substantive provision and there must be strong reasons before the proviso can be treated as a substantive provision. 6. Both the submissions made by the learned counsel for the Revenue rest upon the true interpretation of sec. 6. Both the submissions made by the learned counsel for the Revenue rest upon the true interpretation of sec. 24(1) of the Act, which reads as under: "24. Set off of loss in computing aggregate Income.—(1) Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in sec. 6, he shall be entitled to have the amount of the loss set off against his income profits or gains under any other head in that year ; Provided that in computing the profits and gains chargeable under the head Profits and gains of business, profession or vocation any loss sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, in any other business consisting of speculative transactions: Provided further that where the assessee is an unregistered firm which has not been assessed under the provisions of cl. (b) of sub-sec. (5) of sec. 23, any such loss shall be set off only against the income, profits and gains of the firm and not against the income, profits and gains of any of the partners of the firm ; and where the assessee is a registered firm any loss which cannot be set off against other income, profits and gains of the firm shall be apportioned between the partners of the firm and they alone shall be entitled to have the amount of the loss set off under the section." It may be mentioned here that the second proviso to sec. 24(1), as it stood at the relevant time, was introduced by sec. 27 of the Indian Income-tax (Amendment) Act, 1939 (Act No. 7 of 1939). 7. Prior to the introduction of the aforesaid proviso by the Amending Act of 1939, sec.24 (1) of the Act was interpreted by their Lordships of the Privy Council in Arunachalam Chettiar vs. Commissioner of Income-tax, Madras (14). 27 of the Indian Income-tax (Amendment) Act, 1939 (Act No. 7 of 1939). 7. Prior to the introduction of the aforesaid proviso by the Amending Act of 1939, sec.24 (1) of the Act was interpreted by their Lordships of the Privy Council in Arunachalam Chettiar vs. Commissioner of Income-tax, Madras (14). Their Lordships approved the decision of the Madras High Court in Commissioner of Income-tax Madras vs. Arunachalam Chettiar (15) wherein Schwabe, Chief Justice, held that "a partner in an unregistered firm which has made a loss in the year of account is entitled to set off his share of the loss against the profits and gains made by him is his individual trade and otherwise." Their Lordships of the Privy Council observed— "In their Lordships opinion whether a firm is registered or unregistered, partnership does not obstruct or defeat the right of a partner to an adjustment of account of his share of loss in the firm, whether the set off be against other profits under the same head of income within the meaning of sec.6 of the Act or under a different haed in which case only need recourse be had to sec.24 (1). Thus, the Privy Council emphasised that the object of sec. 24(1) was to allow a set off of profits against losses which arose under different heads of income and only in those cases sec. 24(1) could be pressed into service. In a case where profits and losses arose under the same head, they had to be adjusted against each other for computing the income of the assessee. 8. The question now is as to whether the principles laid down by the Privy Council in Arunachalam Chettiars case (14) are still applicable to the case of a partner of an unregistered firm in the matter of set off his share of loss against the income, profits and gains of his individual business, even after the amendment of the Act in 1939? 9. In Anglo-French Textile Company, Ltd., vs. Commissioner of Income-tax, Madras (16) their Lordships of the Supreme Court followed the aforesaid decision of the Privy Council in Arunachalam Chettiars case (14) and observed— "A set off under sec.24 (1) can only be claimed when the loss arises under one head and the profit against which it is sought to be set off arises under a different head. When the two arises under the same head, of course the loss can be deducted but that is done under sec.10 and not under sec.24 (1)." Their Lordships also held in that case that there was no provision in the Act which entitled the assessee to have a loss recorded or computed, unless something was to be done with the loss. Thus, under sec. 24(1) a loss could be set off against an income, profit or gain and under sub-sec. (2) the balance of a loss could be carried forward to a following year on the conditions set out there. 10 In Commissioner of Income-tax, Mysore, Travancore-Cochin and Coorg vs. Indo-Mercantitle Bank Ltd.,(7) their Lordships of the Supreme Court, while dealing with the provisions of sec. 24(1) observed,— "By the addition of this section the loss under one head of profits or gains was allowed to be set off against income, profits and gains under any other head in any assessment year. There was also a provision in sec.24 (2) for carrying over the loss after such set off had been effected. Sec.24 (1) became the subject matter of controversy in the courts. The Privy Council in Arunachalam Chettiar vs. Commissioner of T. T. held that this section was meant for a set off of profits arising under different heads and not where profits and losses had to be adjusted if they arose under the same head." 11. In Commissioner of Income-tax vs. P. M. Muthuraman Chettiar(6), after referring to Arunachalam Chettiars case(14), the Supreme Court made the following observations,— "It was observed therein that whether a firm was registered or unregistered, a partners share of the loss in the firm could be set off against the profits and gains made by him in his individual business. That principle applies in the present case, even though after the amendment of the Income Tax Act in 1939, the position of a partner in an unregistered firm may stand on a different footing, a distinction which is not material for the present cases." 12. In Muthuraman Chettiars case(6) one of the assessee was a Hindu undivided family which carried on business as a money lender and dealer in shares in what was then known as "British India". In Muthuraman Chettiars case(6) one of the assessee was a Hindu undivided family which carried on business as a money lender and dealer in shares in what was then known as "British India". The assessee was also a partner in three non-resident firms carrying on business in foreign countries In the course of assessment proceedings the assessee claimed a set off in respect of loss in curred in the three foreign businesses in which it was a partner, against its income from money lending business within the texable territories. The other assessee S. Abdul Shakoor was an individual, who carried on a business in the manufacture and sale of lungies at Madras. A similar business was started at Rangoon in Burma in which the assessee was a partner along with two other persons. The Rangoon firm suffered a loss. The assessee, in the assessment proceedings relating to his Madras business, claimed adjustment of loss of Rangoon firm. Their Lordships of the Supreme Court, following their earlier decision in Indo-Mercantile Bank case(7) held that the second proviso to sec. 24(1) had no application to the facts of the cases before them and observed that the object of sec. 24(1) of the Act was to allow the set off of loss under one head againit income, profits and gains under any other head, and there was nothing in the section or in the proviso thereof which would favour the disintegration of the head "business". On this basis, their Lordships concluded that where the assessee carried on several businesses, he was entitled under sec. 10, and not under sec. 24(l) to set-off losses in one business against profits in another. They further held that as sec. 24(1) had no application to the facts of those cases, the second proviso thereto could also have no application. It was pointedly observed at page 714 — "Moreover, the second proviso to sec 24(1) applies only where the assessee is an unregistered firm. That is not the case here. The assessee before us are in one case, a Hindu undivided family, and, in the other, an individual. It was pointedly observed at page 714 — "Moreover, the second proviso to sec 24(1) applies only where the assessee is an unregistered firm. That is not the case here. The assessee before us are in one case, a Hindu undivided family, and, in the other, an individual. It is obvious, therefore, that the second proviso to sec.24 (1) can have no application in these cases." 13 The ratio of the decision in the aforesaid case is that sec.24 (1) has no application whatsoever when set-off is claimed in respect of losses sustained by the assessee under one of the heads enumerated in sec. 6 against income, profits and gains under the same head of income, although there may be distinct and independent entities under the same head, and further that when sec.24 (1) has no application the second proviso thereto cannot apply. Sec. 6 of the Act enumerates various heads of income, profits and gains chargeable to income-tax, namely, salaries; interest on securities; income from property; profits and gains of business, profession and vocation; income from other sources and capital gains Thus profits and gains of business, profession or vocation is one head, in respect of which income has to be computed in the manner provided u/s. 10 of the Act and this head embraces all the businesses, profession or vocation carried on by the assessee. The share of income of a partner in a firm fails within the head "profits and gains of business" and is liable to be included in computing his total income u/s. 10 of the Act and not under the head "income from other sources"falling u/s. 12 of the Act. If that is so, there is no reason as to why the loss incurred by an assessee as a partner of a firm should not likewise be deducted in computing his total income under sec. 10 of the Act, under the head "business". Although under the proviso to sec. 16(1) (b), the share of loss incurred by a partner of a firm may be set off or carried forward and set off according to the provisions of sec. 24, but that is only possible in the circumstances under which S. 24(l)could be attracted, that is, where loss under one head of income is sought to be adjusted against profits or gains under a different head. 24, but that is only possible in the circumstances under which S. 24(l)could be attracted, that is, where loss under one head of income is sought to be adjusted against profits or gains under a different head. When however the loss incurred in one business is sought to he adjusted against profits of another business of the same assessee, during the same year, such loss is capable of being taken into account in the computation of profits and gains of business under sec. 10 of the Act and the proviso to sec. 16(l)(b) does not prohibit such a course. The Supreme Court in Muthuraman Chettiars case(6) clearly held that where an assessee carries on several businesses, he is entitled under sec. 10 and not under sec. 24(1) to set off losses in one business against profits in another. Sec. 24 could only be pressed into service when the assessee sought adjustment in respect of his share of loss in the unregistered partnership firm against his profits under a different head of income and not where the adjustment was sought by the individual partner of an unregistered firm under the same head, enumerated under sec. 6 of the Act. It would be seen that sec. 24(1) provides for set off between different heads and it comes into play only when income is computed under each of the different heads and it is found that there is loss under one or more of the heads and there is profit under other heads, so that the loss could be set off against the profit in order to arrive at the total income assessable to tax. We, therefore, hold that sec. 24(1) of the Act cannot be applied to a case where the adjustment of loss in one business was sought against profit in another under the same head of income and further that the second proviso to sec. 24(1) has reference only to set off of loss incurred under one head against his profit under another head and not where adjustment of his share of loss in one business is desired by a partner of an unregistered firm against profit from his other businesses under the same head, while making a computation of his income under sec. 10 As sec. 10 As sec. 24(1) of the Act provides for set off of" losses under one head against profits under any other head of the same assessee in the same year, the second proviso to that sub-section would operate in the same field in which section 24(1) operates Moreover, the second proviso of sec. 24(1) on its plain language, could only apply where the unregistered firm was an assessee. If the assessee is a partner of an unregistered firm, which has not been assessed, as is the case before us, and not the unregistered firm itself the aforesaid proviso cannot be attracted. The decision of their lordships of the Supreme Court in Muthuraman Chettiars case (6) fully supports the aforesaid view. 14. Learned counsel for the Revenue, however, relied upon certain observations made by their lordships of the Supreme Court in Commissioner of Income-tax, Bombay City II vs. Jadavji Narsidas & Co.(5). The facts of that case were that the assessee, a registered firm consisting of four partners, carried on business which was mainly of speculation. In the year of account, the assessee-firm carried on a joint venture with one Damji Laxmidas, an individual, and sustained losses in transactions of speculative nature. The aforesaid joint venture was carried on in the name of Damji Laxmidas and was an unregistered firm of which the assessee (registered firm) and Damji were the partners. The question arose as to whether the assessee could claim a set off of its share of losses incurred by the unregistered partnership with Damji. The Supreme ourt held that the losses of the unregistered firm could not be set off against the income of the assessee firm on the ground that the losses of unregistered firm could only be set off against the income of that unregistered firm. Their lordships held that the assessee-firm, as a firm, could not enter into partnership with Damji as it was a registered firm and there was thus partnership between Damji and the members of the assessee-firm acting for themselves individually. There were two distinct partnerships, namely, (1) the assessee-firm which was registered consisting of four partners, and (2) to the unregistered firm consisting of five partners, of whom the fifth was Damji. There were two distinct partnerships, namely, (1) the assessee-firm which was registered consisting of four partners, and (2) to the unregistered firm consisting of five partners, of whom the fifth was Damji. Their lordships observed that the unregistered firm has not been assessed and the assessee-firm which was a registered firm of four partners, on its own assessment, showed a profit and it could not set off against its profits, a loss which was incurred by an unregistered partnership between Damji and the four partners of the assessee firm in their individual capacity. In these circumstances, the Supreme Court held— "Now under sec.24 (1) second proviso, the losses of the unregistered firm of Damji and these four partners can only be set off against the income, profits and gains of the unregistered firm and not those of it partners. It must be remembered that in the case of Jadavji Narsidas & Co.(5) the assessee was a registered firm and not an individual. Moreover, in that case it was held that there could be no partnership between the assessee-firm and Damji as the assessee-firm being a registered partnership firm, could not enter into any such partnership. If the partnership did not exist, there was no question of the assessee-firm suffering any loss as a partner in it and therefore there was no loss of the assessee-firm (registered firm) for which it could claim a set off. The assessee-firm had no interest in the unregistered partnership consisting of five persons and therefore it had no concern with the losses incurred by the unregistered partnership. Thus, the question in that case was as to whether the assessee, the rigistered firm, could claim a set off in its own assessment in respect of losses incurred by a different body, that is, the unregistered firm, of which the assessee-firm could not have been a partner. 15. Thus, the question in that case was as to whether the assessee, the rigistered firm, could claim a set off in its own assessment in respect of losses incurred by a different body, that is, the unregistered firm, of which the assessee-firm could not have been a partner. 15. It would be relevant to remember that the question before us in the instant case did not arise in that case and their lordships of the Supreme Court made it clear by making the following observations at page 50— "Whether the partners in their individual assessments would be able to take advantage of sec.16 (1) (b) and the decision of the Privy Council in Arunachalam Chettiar vs. Commissioner of I.T. (a point almost conceded before us) is not a matter on which we need pronounce our opinion, That question does not arise for our consideration." 16. The view taken by us above has also been taken by the Bombay, Gujrat and Delhi High Courts. The Bombay High Court in Commissioner of Income-tax, Bombay South vs. Jagannath Narsingdas (8), while dealing with the case of an assessee who was an individual, held that he was entitled to adjust his share of the loss sustained by an unregistered firm, in which the assessee was a partner, against the profits made by him in a business carried on by him individually. The learned Judges in this case held that the principle laid down by the Privy Council in Arunachalam Chettiars case (14) continued to apply even after the amendment of the Act in 1939. The Bombay High Court relied upon the observations of their Lordships of the Supreme Court in Mathuraman Chettiars case (6) and held— "The treatment of the losses under sec. 24 will only be for the purpose of setting off losses under different heads Where the partner of an unregistered firm seeks a set off or a carry forward and set off of his losses under one head against profits under another head, no doubt he will have to be governed by sec.24 and also by the second proviso to that section. In view of the second proviso, his share of the losses in the unregistered partnership will not be capable of being set off against his income from any other head, but so long as the adjustment that he seeks is in his income under the same head viz. In view of the second proviso, his share of the losses in the unregistered partnership will not be capable of being set off against his income from any other head, but so long as the adjustment that he seeks is in his income under the same head viz. "businessthere is nothing in the provisions of sec. 24 which would preclude him from seeking that adjustment under sec.10 of the Indian Income-tax Act." We respectfully agree. 17. The Bombay High Court also held that the second proviso to sec. 24(1) could only be attracted, even if it be considered to be an independent provision, if the assessee was an unregistered firm and in the case before them, the assessee was an individual and the question was with regard to the computation of the income of that individual under sec 10 of the Act. It was contended before the Bombay High Court as it has been urged before us that the decision in the case should be governed by the judgment of their lordships of the Supreme Court in Jadavji Narsidass case (5), but the Bombay High Court, relying upon the observations of the Supreme Court at page 50 of the report, extracted by us above, observed that the matter in issue relating to the individual assessments of the partners of an unregistered firm was not decided by their lordships of the Supreme Court in Jadaviji Narsidass case (5). 18. In Commissioner of Income-tax, Gujarat vs. Jethalal Zaverchand Patalia (9), the Gujarat High Court took the same view as was taken by the Bombay High Court in Jagannath Narsinghdass case(8). 19. In Commissioner of Income-tax, Delhi vs. Ramswaroop Gupta 10), the Delhi High Court agreed with the decisions of the Bombay and Gujarat High Courts in Jagannath Narsinghdass case(8) and Jethalal Zaverchand Patalias case (9). In this case, the Patna (2), Allahabad (4) and Mvsore (3) cases which took a different view, were also considered. As regards the Patna case (2), it was observed that "it was assumed that there was no difference between the claim of an assessee to adjust losses suffered by him as a partner in an unregistered firm and the facts in Jadavji Narsidass case (5). In actual fact, in the latter case, the claim was made by a registered partnership. As regards the Patna case (2), it was observed that "it was assumed that there was no difference between the claim of an assessee to adjust losses suffered by him as a partner in an unregistered firm and the facts in Jadavji Narsidass case (5). In actual fact, in the latter case, the claim was made by a registered partnership. The Supreme Court expressly left open the question whether the adjustment could be claimed by the partners individually. Raza Sugar Companys case (4) was distinguished on the ground that in that case the unregistered firm was assessed and loss computed and the second proviso to S. 24(1) was held to apply in those circumstances. The Delhi High Court preferred to follow the view taken by the Bombay(8) & Gujarat(9) High Courts and did not agree with the view taken by the Mysore High Court(3). 20. We will now consider the other decisions relied upon by the learned counsel for the Revenue. 21. In Commissioner of Ineome-tax, Bihar and Orissa vs. Gangadhar Nathmal(2) where the assessee was an individual and claimed a set off in respect of his share of loss in an unregistered partnership firm against profits from his other business. The Patna High Court assumed as if that case was fully covered by the decision of the Supreme Court in Jadavji Narsidass case (5) and held that the loss incurred by an unregistered firm, which has not been assessed, could be set off only against the income, profits and gains of the firm and not against the income, profits and gains of any of the partners of the firm. We may observe with respect that there is no discussion of the law on the subject in that case and it was decided under the impression that the judgment of the Supreme Court in Jadavji Narsidass case (5) fully covered the matter. 22. In B. Chickotappa vs. Income-tax Officer, Central Circle II Bangalore(3), the Mysore High Court held that until the amendment of the Income-tax Act of 1922 in 1939, a partners share of the loss in the firm, whether registered or unregistered, could be set off against the profits and gains made by him in his individual business, but, after the amendment of the Act in 1939, and under the Act of 1961, the Position of a partner in the unregistered firm stands on a different footing. It was observed— "Any loss incurred by an unregistered firm may be set off by the firm against its profits of the same year under the same head or any other head and further any unabsorbed loss may be carried forward by the firm and set off against its profits in a subsequent year in accordance with the provisions of sec. 24(2). If the contention of the learned counsel for the petitioners is accepted, partners of unregistered firms stand to gain a double advantage. The firm itself is entitled to carry forward its loss and set off against its pro fits in a subsequent year in accordance with the provisions of sec. 24(2). The partners of the unregistered firm at the same time will also be entitled to set off their share of loss against their own income of the same year under the same head notwithstanding the fact that the unregistered firm is entitled to carry forward its loss and set off against its profits in the subsequent year. Such a position can never have been contemplated by the Legislature." The learned Judges further found support for the view that they took from the fact that under the Income-tax Act of 1961 a partner is not entitled to claim a set off of his share of loss in an unregistered firm against his individual income under the same head, because of the provisions of sec. 77 of the new Act. 23. With respect, we are unable to agree with the view taken in this case because in the first place, the question of set off and carry forward and set off of the losses of the firm against its profits would only arise if the unregistered firm is assessed but such a situation cannot arise when the unregistered firm is not assessed at all. Secondly, even if the unregistered partnership claimed a set off under sec. 24(2) in a subsequent year, the assessments of individual partners were not affected thereby as the Income-tax Officer could refuse to assess the income of the unregistered partnership by exercising the option contained in sec. 23(5) (b) and in that event, the previous loss could not be adjusted by the unregistered partnership firm. The provisions of the Act of 1961, in our opinion, do not afford any guidance in the matter. 24. 23(5) (b) and in that event, the previous loss could not be adjusted by the unregistered partnership firm. The provisions of the Act of 1961, in our opinion, do not afford any guidance in the matter. 24. Learned counsel for the Revenue also relied upon two more cases, namely, Raza Sugar Company vs Commissioner of Income-tax (4) and Commissioner of Income-tax, Nagpur vs. Hirani Construction Company (1), but they are clearly distinguishable. In Raza Sugar Company case (4), the assessee was a limited liability company and it sought to set off its share of loss incurred in an unregistered partnership with another company against the profits of the company but in that case the partnership firm was assessed as an unregistered firm and that assessment had been accepted and no appeal was filed against it. It was held that the second proviso to sec. 24(1) was attracted and the assessee company was not entitled to have the amount of loss sustained by the unregistered partnership set off against the assessees income. The Allahabad High Court mainly relied upon the judgment of the Supreme Court in Jadavji Narsidas & Company(5) and distinguished the decisions in Muthuraman Chettiar(6), Jagannath Narsinghdas(8) and Jethalal Zaverchand (9) cases on the ground that in those cases the unregistered firm was not assessed while in the case before them the unregistered firm had been assessed as a separate unit and the said assessment had become final However, in the case before us, the unregistered partnership has not been assessed at all, as was the situation in Jagannath Narsinghdas(8) and Jethalal Zaverchand (9) cases. 25. In Hirani Construction Company case (l), the assessee was a registered firm and it entered into a partnership with a limited company and as the partnership sustained loss the same was dissolved. The partnership of the assessee firm and the limited company disclosed loss in the assessment proceedings. The Bombay High Court following the judgment of their lordships of the Supreme Court in Jadavji Narsidas and Com.(5) held that the assessee, which was a registered firm, was not entitled to set off the losses in the dissolved unregistered firm, as the dissolved firm had not been assessed under sec. 23(5) (b). The Bombay High Court following the judgment of their lordships of the Supreme Court in Jadavji Narsidas and Com.(5) held that the assessee, which was a registered firm, was not entitled to set off the losses in the dissolved unregistered firm, as the dissolved firm had not been assessed under sec. 23(5) (b). As in the case before the Bombay High Court, the assessee was a registered firm, that case was certainly covered by the decision in Jadavji Narsidass case 5), but, it is clearly distinguishable from the present case, inasmuch as the assessee before us is an individual, who was a partner of an unregistered firm which was not assessed at all. 26. The second submission made by Mr. Lodha for the Revenue is that the second proviso to sec. 24(1) of the Act is an independent provision and, if it is so considered, a partner of an unregistered firm could not seek an adjustment of his share of loss in the unregistered firm against profits made in his individual business. He has mainly relied upon a decision of the Bombay High Court in Keshavlal Premchand vs. Commissioner of Income-tax, Ahmedabad(ll) in which the first proviso to sec. 24(1) was considered to be an independent provision. By a parity of reasoning, learned counsel submitted that if the first proviso to sec. 24(1) could be considered as an independent provision, the second proviso should likewise be so considered and full effect should be given to the second proviso of sec. 24(1) independently of the main enacting part of the aforesaid subsection. The submission made by the learned counsel is negatived by the very language employed in the second proviso to sec. 24 1) wherein a reference has been made to "any such loss" which can obviously mean the loss referred to in the main enacting part of sec. 24(1) of the Act. The use of the word "such" therefore in the second proviso is a clear pointer to the fact that the said proviso could not be read as an independent provision, but must be read as an exception to the main provision of sub sec. (1) of sec. 24 Moreover, the function of a proviso is to carve out an exception to the main enactment and to exclude something which would otherwise have been within the scope of the main provision. (1) of sec. 24 Moreover, the function of a proviso is to carve out an exception to the main enactment and to exclude something which would otherwise have been within the scope of the main provision. It has been held by their lordships of the Supreme Court in Ramnarain Sons Ltd. vs. Assistant Commissioner of Sales Tax (17) as under— "It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only enmbraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other." Therefore, very strong reasons are necessary to consider a proviso as an independent provision which is ordinarily foreign to the proper functioning of a proviso. 27. In Commissioner of Income-tax vs. Indo Mercantile Bank Ltd. (7), their lordships of the Supreme Court rejecting a similar argument in respect of the first proviso to sec. 24(1) observed— "In the proviso in dispute there are no positive words which would support an interpretation in favour of the disintegration of the head business and compel the application of the proviso to the same head, specially keeping in view the object of the main section, i.e. sec. 24(1) which was to set off loss of profits or gains under one head against income, profits or gains under any other head.. 28. We may also refer to Mohanlal Hiralal vs. Commissioner of Income-tax (13), where a similar argument regarding the second proviso to sub-sec. (1) to sec. 24 was made and it was held by the Nagpur High Court as follows— "We are unable to accept the argument of the learned counsel that the second proviso should be read as an independent provision. (1) to sec. 24 was made and it was held by the Nagpur High Court as follows— "We are unable to accept the argument of the learned counsel that the second proviso should be read as an independent provision. According to him, the proviso is applicable to a set off of the loss of an unregistered firm against the income, profits and gains of any of its partners, whether that firm is in British India or outside and whether the set off is claimed against another head of income or against the same head." x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x "Sec. 24(1) of the Act refers to the set off of loss under one head against the income of the assessee under another head under sec. 6. To this general rule the second proviso provides an exception that in the case of an unregistered firm any loss of that firm under another head must be set off against its income, profits and gains under another head and not against the income, profits and gains of any of its partners, If the unregistered firm still returns a loss, that loss can be carried forward under sub-sec. (2)." 29. In Jamnadas Daga vs. Commissioner of Income-tax (12), the same contention was made that the second proviso to sec. 24(1) should be read as a substantive enactment. While rejecting the aforesaid contention, Tandolkar J. of the Bombay High Court observed as under— "No such consideration arises from the language of the second proviso, which we have reproduced. That language is clearly applicable to a set off as between different heads; and therefore, in our opinion, the proviso should be restricted to the normal function of a proviso, namely, to exclude from the operative part of sec. 24(1) something which might otherwise have been included in it." The decision of the Bombay High Court on the main issue was upheld by the Supreme Court on appeal in Seth Jamnadas Daga vs. Commissioner of Income-tax (18). 30. 24(1) something which might otherwise have been included in it." The decision of the Bombay High Court on the main issue was upheld by the Supreme Court on appeal in Seth Jamnadas Daga vs. Commissioner of Income-tax (18). 30. In Commissioner of Income-tax vs. Jagannath Narsinghdas (8) the Bombay High Court had again an occasion to consider the same argument which was repelled on the ground that it was primafacie a proviso and would have to be regarded as such unless there is very good and strong reason to hold that its scope is not merely that of a proviso but of an independent provision. Relying upon the decision of the Nagpur High Court in Mohanlal Hiralals case (13), it was held that the second proviso in question could not be regarded as an independent provision affecting the computation of the income of the assessee under sec. 10 of the Act. 31. We may also observe that in Commissioner of Income-tax vs. Muthuraman Chettiar (6), their lordships of the Supreme Court made the following significant observations— "It follows from this that where the assessee carries on several businesses he is entitled under sec.10 and not u/s. 24(1) to set off losses in one business against profits in another. If as we hold sec. 24(1) has no application to the facts of the present cases, the second proviso thereto can also have no application." It is thus clear that their lordships of the Supreme Court indirectly refused to consider the second proviso to sec 24(1) as an independent provision and learned counsel for the Revenue has been unable to show any strong or sufficient reasons for holding the said proviso as an independent provision On the other hand, as we have mentioned above, the plain language of the second proviso indicates that it only provides an exception and qualifies the generality of the main enactment contained in sub sec. (1) of sec. 24. 32. In the result, we hold that the assessee, in his individual assessment, was entitled to set-off his share of loss in the unregistered firm M/s. Ganga Theatre, Bikaner against his other income and answer the question referred to us by the Tribunal in favour of the assessee and against the Revenue. The assessee shall be entitled to costs which we assess at Rs. 200/-.