2020 (3) TMI 1411 - AT - Income Tax

Nature of loss - business loss or speculation loss - Treating the business loss incurred in Future Option of Derivatives as Speculation Loss u/s 73(1) - whether considering the F O transactions has not satisfied the condition of section 43(5)? - HELD THAT - The derivatives i.e. Future and Option transactions were taken place in the recognized stock exchange i.e. National Stock exchanged and MCS in various scripts and currencies. The detailed broker note along with contract notes/invoices were submitted during the course of assessment proceedings. The assessing officer has treated the aforesaid loss as speculation loss and stated that as per section 73(1) of the Act the same cannot be set off against other normal business loss. We consider that the ld. CIT(A) is not justified in treating the business loss incurred in Future Option of Derivatives as speculation loss. Therefore, following the decision of the Co-ordinate Bench 2019 (9) TMI 610 - ITAT AHMEDABAD the appeal of the assessee is allowed.

Summary

Issues Involved:
1. Treatment of business loss incurred in Future & Option of Derivatives as Speculation Loss under section 73(1) of the Income Tax Act.
2. Consideration of F & O transactions not satisfying the condition of section 43(5) of the IT Act.

Issue 1: Treatment of Business Loss as Speculation Loss:
The case involved an appeal by the assessee for the assessment year 2013-14, challenging the treatment of a business loss incurred in Future & Option (F & O) of Derivatives as Speculation Loss under section 73(1) of the Income Tax Act. The assessing officer had disallowed the loss, citing speculation business activities. The assessee argued that F & O transactions were conducted through a recognized stock exchange and should be considered normal business income/loss under section 43(5) of the Act. The assessing officer disagreed, relying on a High Court decision and invoking section 71(A) to disallow the loss for set-off against other business profits.

Issue 2: Compliance with Section 43(5) of the IT Act:
The assessee contended that the F & O transactions in Nifty and currency were not speculative as per section 43(5) of the Act, which excludes certain transactions from being deemed speculative. The Co-ordinate Bench of ITAT Ahmedabad had previously adjudicated a similar issue in the case of Magic Share Traders Ltd. vs. ITO, where it was held that losses from derivative transactions not involving shares could not be classified as speculative losses. The Bench emphasized that derivatives should not be equated with shares for the purpose of Explanation to Section 73 of the Act.

Judgment:
After reviewing the provisions of section 43(5) and the precedent set by the Co-ordinate Bench, the Appellate Tribunal allowed the appeal of the assessee. The Tribunal found that the CIT(A) erred in treating the business loss from F & O of Derivatives as speculation loss. By following the decision of the Co-ordinate Bench, the Tribunal concluded that the loss incurred in eligible derivative transactions should not be considered speculative under the Act. Consequently, the appeal of the assessee was allowed, and the business loss was not treated as speculation loss.

This detailed analysis of the judgment highlights the key issues, arguments presented, legal provisions applied, and the final decision rendered by the Appellate Tribunal.