2019 (6) TMI 1474 - AT - Income Tax

Disallowance u/s 73 - treating share trading loss as speculative loss - correct turnover of the assessee - HELD THAT - Turnover of the assessee has been taken erroneously by omitting the last digit i.e. zero from the turnover. The correct turnover of the assessee is ₹ 3901,42,49,580/- whereas the AO has wrongly taken ₹ 390,14,24,958/- while calculating the disallowance of expenses relating speculative business. We have also examined the disallowance as calculated by the assessee in table C above and are of the considered view that disallowance of expenses attributable to speculation business has to be made to the extent of ₹ 29,022/- only. Accordingly, we set aside the order of Ld. CIT(A) and direct the AO to restrict the disallowance of expenses relating to share trading in own shares at ₹ 29,022/- in place of ₹ 48,37,013/-.Finally we ,respectfully following the apex court decision in the case of Sun Tax Investment Ltd. vs. PCIT 2019 (5) TMI 1165 - SUPREME COURT reverse the order of CIT(A) and restore the order of AO with the modification that expenses to be disallowed relating to the speculative business be restricted to ₹ 29,022/-. - Appeal of the Revenue is partly allowed

Summary

Issues involved:
Disallowance of share trading loss as speculative loss under section 73 of the Income Tax Act and calculation of expenses relating to speculative business.

Analysis:
1. The appeal was filed by the Revenue against the order of the Commissioner of Income Tax (Appeals) regarding the disallowance of share trading loss as speculative loss under section 73 of the Income Tax Act for the assessment year 2013-14.

2. The Assessing Officer (AO) observed that the assessee was engaged in share trading and broking activities. The AO treated the share trading loss as speculative loss and disallowed expenses related to share trading, totaling to &8377; 69,76,286/-.

3. The Commissioner of Income Tax (Appeals) allowed the appeal of the assessee, stating that the business of share trading and broking falls within the exceptions provided in the explanation to section 73 of the Act.

4. During the appellate proceedings, the assessee's representative admitted that the issue was covered against the assessee by a Supreme Court judgment. However, discrepancies in the calculation of expenses relating to speculative business were highlighted, leading to a revised calculation of &8377; 29,022/-.

5. The Tribunal observed that the assessee was engaged in two types of businesses - dealing in shares and providing buying/selling services to clients. The correct turnover figures were presented, showing a disallowance of expenses related to speculative business at &8377; 29,022/-.

6. The Tribunal noted that the AO had erroneously calculated the expenses by using an incorrect turnover figure. Following the Supreme Court decision, the Tribunal reversed the order of the Commissioner of Income Tax (Appeals) and directed the AO to restrict the disallowance of expenses to &8377; 29,022/-.

7. The Tribunal partly allowed the appeal of the Revenue, emphasizing the correct calculation of expenses relating to share trading in own shares and restricting the disallowance to &8377; 29,022/-.

Conclusion:
The Tribunal's judgment addressed the issue of treating share trading loss as speculative loss under section 73 of the Income Tax Act and the correct calculation of expenses relating to speculative business. The decision highlighted the importance of accurate turnover figures in determining the disallowance of expenses and upheld the Revenue's appeal partially by setting the disallowance at &8377; 29,022/-.