2009 (5) TMI 798 - AT - Income Tax

Assessee is into sale and purchase of shares - suffers loss and carries the same forward and setss off the same against profit of the next fiscal - AO disallows the same as speculation business loss which can be set off only against speculation business profit - AO invokes Sec 73(1) - assessee pleads the transactions were in the nature of jobbing charges.

Summary

Issues:
Interpretation of Sec.43(5) and Sec.73(1) of the IT Act regarding speculative transactions and business losses.

Analysis:
The judgment involves a case where the assessee, a member of the Bangalore Stock Exchange, claimed that the transactions executed were not speculative but in the nature of jobbing/arbitrage under Sec.43(5) of the IT Act. The Assessing Officer (AO) treated the losses as speculative business loss, disallowing set off against business profits under Sec.73(1) of the IT Act. The Tribunal referred to previous orders and provisions of Sec.43(5) and Sec.73(1) to analyze the nature of the transactions.

The Tribunal highlighted that Sec.43(5) defines speculative transactions and includes clauses regarding jobbing and arbitrage. It emphasized that transactions falling under jobbing or arbitrage, as per proviso (c) of Sec.43(5), are not to be considered speculative transactions. The Tribunal noted that Sec.73(1) restricts the set off of losses from speculative business against profits from another speculative business. Therefore, for Sec.73(1) to apply, the transaction must lead to a speculative business with resulting losses.

The Tribunal found merit in the argument that the transactions in question were in the nature of jobbing and arbitrage, covered by proviso (c) to Sec.43(5) and not speculative. It clarified that when a transaction is not speculative, the resulting loss should be considered a business loss and allowed accordingly. The Tribunal directed the AO to allow the claim for both assessment years based on this interpretation of the provisions.

In conclusion, the Tribunal allowed the appeals filed by the assessee, emphasizing that the transactions were not speculative but fell under jobbing or arbitrage, as per Sec.43(5) proviso (c). The judgment clarified the distinction between speculative transactions and business losses, providing a detailed analysis of Sec.43(5) and Sec.73(1) of the IT Act to support its decision.