9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (5) TMI 351 - AT - Income TaxDisallowance of intra head adjustment in respect of business loss and Profit under the head Capital Gain by invoking provision of explanation to section 73 - Held that - Respectfully following the judgment in the case of CIT vs. HSBC Securities & Capital Markets India P. Ltd. (2012 (6) TMI 715 - BOMBAY HIGH COURT ) and the decision of ACIT, Spl.Circle 18(1) vs. Concord Commercials (P) Ltd.(2005 (1) TMI 314 - ITAT BOMBAY-H ), we are of the view that during the year under appeal assessee s income mainly includes income from capital gain at ₹ 6,58,227/- and exempt income in the form of dividend at ₹ 57,171/- under the head business assessee has suffered a loss of ₹ 6,18,448/- and further observing the fact that specific amendment has been inserted in the statute by way of including companies engaged in the business of trading of shares in the explanation to section 73 of the Act w.e.f.1.4.15 clearly gives indication that for the year under appeal ld. Assessing Officer was not correct in invoking the explanation to section 73 of the Act on the assessee s case and therefore, erred in treating business loss as deemed speculation loss and not allowing set off against the income from capital gain. - Decided in favour of assessee.
Issues Involved:
1. Intra-head adjustment of business loss against capital gain. 2. Application of Explanation to Section 73 of the Income Tax Act, 1961. 3. Treatment of loss on futures and options transactions. 4. Treatment of short-term capital gain as business income. 5. Penalty proceedings under Section 271(1)(c) of the Income Tax Act. 6. Interest charged under Section 234B/C. Detailed Analysis: 1. Intra-head Adjustment of Business Loss Against Capital Gain: The primary issue was whether the assessee could set off a business loss of ?6,18,448 against a short-term capital gain of ?6,58,227. The Assessing Officer (AO) disallowed the set-off by invoking Explanation to Section 73, treating the business loss as a deemed speculation loss. The CIT(A) upheld this view, stating that the assessee's primary activity was share trading, making the loss speculative and not adjustable against capital gains. 2. Application of Explanation to Section 73: The Explanation to Section 73 deems the business of purchasing and selling shares as speculative, except for companies mainly earning income from "Interest on Securities," "Income from House Property," "Capital Gains," and "Income from Other Sources." The assessee argued that its gross total income mainly consisted of capital gains, making the Explanation inapplicable. The Tribunal agreed, noting that the gross total income included a capital gain of ?6,58,227, which was higher than the business loss, thus excluding the assessee from the purview of Explanation to Section 73. 3. Treatment of Loss on Futures and Options Transactions: The CIT(A) directed the AO to treat the loss from futures and options (F&O) transactions as a business loss, not speculative, because derivatives are not shares and thus not covered by Explanation to Section 73. This direction was upheld by the Tribunal. 4. Treatment of Short-term Capital Gain as Business Income: The assessee's claim to treat short-term capital gains as business income was rejected by the CIT(A), who noted that the assessee had treated the purchases of shares as investments, not stock-in-trade. The Tribunal upheld this view, agreeing that the nature of the transactions did not support the reclassification of capital gains as business income. 5. Penalty Proceedings Under Section 271(1)(c): The issue of penalty proceedings under Section 271(1)(c) was deemed premature by the Tribunal and thus not addressed in detail. 6. Interest Charged Under Section 234B/C: The interest charged under Section 234B/C was considered consequential and dependent on the outcome of the primary issues. Conclusion: The Tribunal allowed the assessee's appeal, concluding that the AO erred in treating the business loss as a deemed speculation loss under Explanation to Section 73. The Tribunal emphasized that the assessee's gross total income mainly consisted of capital gains, thus excluding it from the purview of the Explanation. The direction to treat F&O losses as business losses was upheld, and the reclassification of short-term capital gains as business income was rejected. The issues of penalty and interest were deemed premature and consequential, respectively. The appeal was allowed in favor of the assessee.
|
