2008 (10) TMI 389 - AT - Income Tax

Summary

Issues Involved:
1. Invoking Explanation to Section 73 and calculating deemed speculative loss.
2. Reduction of brokerage income from deemed speculative losses.
3. Charging of interest u/s 234B.

Summary:

Issue 1: Invoking Explanation to Section 73 and calculating deemed speculative loss

The assessee, a share broker, incurred a loss of Rs. 45,74,931 from trading in shares on its own account. The Assessing Officer treated this loss as a deemed speculative loss by invoking the Explanation to section 73 of the Income-tax Act, 1961. The CIT (Appeals) upheld this decision, stating that the losses from share transactions are "deemed" speculation losses under section 73, irrespective of their non-speculative nature as per section 43(5). The Tribunal referred to the Explanation to section 73, which deems the business of purchase and sale of shares by certain companies as speculative for the purpose of section 73. The Tribunal also cited the Calcutta High Court's decision in CIT v. Arvind Investments Ltd. [1991] 192 ITR 365, which supported the view that losses from share dealings are speculative losses under the Explanation to section 73, even if the transactions are not speculative under section 43(5). Consequently, the Tribunal upheld the CIT (Appeals)'s order, confirming the deemed speculative loss.

Issue 2: Reduction of brokerage income from deemed speculative losses

The assessee claimed that the brokerage income of Rs. 3,45,914, earned from its own share transactions and included in the gross brokerage income, should be reduced from the deemed speculative losses. The CIT (Appeals) rejected this claim, noting that there was no evidence on record to show that the assessee had charged brokerage and commission from itself. The Tribunal restored this issue to the Assessing Officer for further examination and verification of the books of account and other relevant materials to ascertain the correct position. The Assessing Officer was directed to adjudicate this issue after providing an opportunity of being heard to the assessee.

Issue 3: Charging of interest u/s 234B

The issue of charging interest u/s 234B was also restored to the Assessing Officer for fresh adjudication. The Assessing Officer was instructed to consider the assessee's contentions and the relevant provisions of law, and to provide an opportunity of being heard to the assessee on this matter.

Conclusion:

The appeal filed by the assessee was partly allowed for statistical purposes, with issues 2 and 3 being remanded to the Assessing Officer for further examination and adjudication.